Legal Update: What Housing Providers Need to Know About Emotional Support Animals

What Housing Providers Need to Know About HUD's New Position on Emotional Support Animals

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The U.S. Department of Housing and Urban Development (HUD) recently released an internal memo that significantly changes how the agency will handle fair housing complaints involving emotional support animals. This article explains what has changed, what has not changed, and what housing providers should do in response.

Understanding Key Terms

Before we dive in, let's clarify some important terms:

Emotional Support Animal (ESA): A pet (usually a dog or cat) that provides comfort and emotional support to a person with a disability simply by being present. ESAs are not trained to perform specific tasks.

Service Animal: Under the Americans with Disabilities Act (ADA), a service animal is a dog (or occasionally a miniature horse) that has been individually trained to perform work or tasks directly related to a person's disability. For example, a guide dog for a blind person or a dog trained to detect seizures before they happen. The key difference is that service animals must be trained to do something specific not just provide comfort.

Reasonable Accommodation: A change to a rule, policy, or practice that gives someone with a disability an equal opportunity to use and enjoy housing. For example, allowing a service animal in a building with a "no pets" policy.

Fair Housing Act: The federal law that prohibits discrimination in housing based on race, color, religion, sex, disability, familial status, or national origin. It requires housing providers to make reasonable accommodations for people with disabilities. North Carolina also has a state version of the federal law which mirrors the protected classes mentioned herein.

What HUD Is Doing Differently

According to HUD's internal memo, the agency will now apply the ADA's service-animal standard when deciding whether to investigate fair housing complaints related to assistance animals. Under the ADA, a service animal must be a dog (or miniature horse in rare cases) that is individually trained to perform work or tasks directly related to a person's disability.

Since most emotional support animals are not trained to perform specific tasks, the HUD memo indicates that HUD will no longer pursue these cases and/or they will result in a finding of no discrimination. If someone files a complaint with HUD about an ESA denial and HUD determines the animal is an untrained ESA rather than a task-trained service animal, it appears that HUD will close the case without investigating.

What HUD's Memo Does Not Change

This is critical to understand because an internal memo is not a rule or even guidance: HUD's enforcement shift does not eliminate your legal obligations or risks. Here's what remains unchanged:

1. The Fair Housing Act is still the law. The statute still requires housing providers to make reasonable accommodations when necessary to give people with disabilities equal opportunity to use and enjoy housing. The law does not say that accommodations are limited to trained service animals.

2. Court decisions still apply. Many federal courts have ruled that ESAs are reasonable accommodations under the Fair Housing Act, even though ESAs would not qualify under this ADA application. Those court decisions remain binding law and still apply to your properties and operations.

3. Residents can still sue you directly. Even if HUD closes a case, the resident/applicant can file a lawsuit directly in federal court. HUD's decision not to investigate does not protect you from being sued by a private individual and the case law still supports the approval of ESAs as an accommodation.

4. You cannot adopt a blanket "no ESA" policy. If you adopt a categorical policy denying all ESA requests, you are inviting lawsuits and exposing yourself to substantial legal risk.

Why Courts Will Decide These Cases Independently

In June 2024, the U.S. Supreme Court decided a case called Loper Bright Enterprises v. Raimondo that fundamentally changed how courts treat federal agency guidance. That rule, called "Chevron deference," no longer exists.

What this means in plain English: Courts no longer have to follow HUD's interpretation of what the Fair Housing Act requires when it comes to reasonable accommodations or any other facet of the Fair Housing Act. Each judge will decide for themselves what the law means; the outcome of any lawsuit will depend heavily on which judge hears your case and how that judge reads the statute and/or applies your facts to existing case law.

What Housing Providers Should Do

The most important takeaway is this: HUD's memo is not a green light to deny every ESA request. Here's what you should do when you receive an ESA accommodation request:

1. Accept and review each request. Do not reject it automatically. Treat it as potentially legitimate and evaluate it based on its own facts.

2. Request appropriate documentation. You can ask for verification from a healthcare or mental health provider that confirms the request. This should set forth the existence of a disability that substantially impacts one or more major life activities along with a disability-related need for the accommodation being requested.

3. Communicate with the resident. If the documentation is unclear or incomplete, talk to the resident. Ask follow-up questions. Give them a reasonable opportunity to provide additional information.

4. Keep detailed records. Document what you requested, what you received, how you evaluated the request, and the specific reason for your decision (approval or denial). If you are ever sued, good records will be essential to your defense.

5. Train your leasing staff. Make sure everyone who handles accommodation requests understands fair housing law and the risks of categorical denials. Inconsistent handling of requests creates legal exposure.

Key Takeaways

• Do not adopt a blanket "no ESA" policy, you will face substantial legal risk.
• HUD is stepping back from ESA enforcement and closing pending administrative cases. This does not change the Fair Housing Act, existing court decisions, or residents'/applicants’ right to sue.
• Courts will now decide ESA cases independently, without deferring to HUD's agency interpretation.
• Evaluate each ESA request individually, request proper documentation, and keep detailed records.
• You can scrutinize questionable requests more carefully, but you cannot categorically deny all requests.
• Consult experienced fair housing counsel before making significant policy changes.

References

42 U.S.C. § 3604 (Fair Housing Act prohibition on discrimination)

42 U.S.C. § 3613 (Fair Housing Act private right of action)

24 C.F.R. § 100.204 (HUD regulation on reasonable accommodations)

24 C.F.R. § 100.500 (HUD regulation on discriminatory effects)

Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) (overruling Chevron deference)

*The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information in this article is for general informational purposes only. Information in this article may not constitute the most up-to-date legal or other information. Viewers of this material should contact their attorney to obtain advice with respect to any particular legal matter. No viewer of this material should act or refrain from acting on the basis of information in this presentation without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation.  Use of, and access to, this article does not create an attorney-client relationship between the reader and Brownlee Whitlow & Praet, PLLC, Loebsack & Brownlee, PLLC, or any contributing law firms. All liability with respect to actions taken or not taken based on the contents of this article are hereby expressly disclaimed.