John Egan is an attorney at Seyfarth Shaw who focuses on Fair Housing Act and accessibility compliance issues for housing providers. Opinions are the author’s own.

On May 22, the Assistant Secretary for Fair Housing and Equal Opportunity at HUD issued a memorandum establishing new enforcement guidance for assessing requests involving animals as reasonable accommodations under the Fair Housing Act. The memo marks a significant shift.

For years, HUD guidance recognized “assistance animals” as including not only trained service animals, but also untrained animals that provide emotional support or therapeutic benefit to individuals with disabilities. That framework was reflected in HUD’s 2013 guidance and later in FHEO Notice 2020-01, issued on Jan. 28, 2020.

In the memo, HUD states that there has been a “dramatic” divergence between the framework for animal-related accommodations under the FHA and the treatment of animals under Title III of the Americans with Disabilities Act. According to HUD, more than 20% of HUD’s fair housing complaints now involve untrained emotional support animals, a situation the agency said “cannot continue.” 

Going forward, HUD will find reasonable cause for the failure to provide an animal-related accommodation only when the animal has been individually trained to perform work or tasks to assist a person with a disability. In other words, in the multifamily housing context, HUD will only recognize service animals as defined under Title III of the ADA, which applies to places of public accommodation rather than residential facilities. 

In reaching that conclusion, HUD stated that the ADA’s service animal regulations are “instructive,” and it will engage in future notice-and-comment rulemaking to harmonize the regulations with ADA Title III “to the maximum extent possible.”

HUD’s enforcement shift on ESA accommodation issues

The 2020 Notice recognized untrained ESAs as “assistance animals.” It also included commentary that HUD now appears to consider too permissive. 

For example, the 2020 Notice stated that residents could request accommodations after acquiring an animal, and even after the housing provider had already sought to enforce lease provisions because of the animal’s presence. It also contemplated circumstances, with the appropriate showing by the resident, that ESAs may include animals beyond common domesticated animals such as dogs, cats, rabbits and birds. (The 2020 Notice includes an anecdotal reference to an “individually trained capuchin monkey.”)

The memo states that “it remains an immense challenge to determine whether an animal-related reasonable accommodation should be granted or denied,” and observes that an entire industry has emerged to “convert pets into emotional support animals,” such as online certifications, registries, licenses, vests and similar authentication documents offered for a fee.

HUD attached several noteworthy decisions to the Memo. One case is a recent federal district court decision from Louisiana, Henderson v. Five Properties LLC, where the court affirmed on summary judgment the defendant’s decision not to waive a pet fee for the resident’s untrained emotional support dog. HUD specifically noted that the court in Henderson found the 2020 Notice unpersuasive, and HUD now agreed with the court’s critical assessment of the agency’s former guidance. 

HUD also attached two determinations of no probable cause involving even more problematic requests: one where a resident sought fee waivers for multiple purported ESAs based on boilerplate letters obtained from a questionable online source; and another involving a resident who kept multiple animals — including three dogs, eight puppies, a bird, a rabbit and a snake — while also failing to pay rent, causing $20,000 property damage and leaving 3,000 pounds of garbage on premises upon move-out. 

The agency’s inclusion of these determinations appear intended to suggest that this is an area ripe for abuse, which HUD must now reign in.

Memo creates new compliance challenges

At first glance, the memo may seem like welcome news for housing providers. These businesses must contend with boilerplate, vague and otherwise questionable documentary support for ESA requests, residents who submit requests only after the unauthorized animal is discovered, aggressive animals or other health and safety concerns presented by some requests.  

However, HUD’s wholesale rescission of ESA guidance is not the end of the matter for housing providers. In fact, this development arguably adds more complexity, uncertainty and confusion over these requests. These issues include the following:

• No replacement framework. HUD rescinded the 2020 Notice, but did not replace it with a comprehensive framework for evaluating service animals or other animal-related accommodation requests in housing. That leaves housing providers with less guidance on how to evaluate requests going forward.
• Uncertainty over the ADA “two-question” approach to service animals. The memo states that the ADA service-animal regulations are “instructive,” but does not explain whether housing providers are now limited to the two questions permitted in places of public accommodation: whether the animal is required because of a disability and what work or task the animal has been trained to perform. This approach is appropriate for animals transiently present in a restaurant, store, hotel or other public accommodation. But an animal residing full-time in a multifamily community presents different issues, including vaccinations, resident safety, property damage, insurance, allergies, noise, sanitation and interactions with other residents, which often demand a greater exchange of information.
• Private litigation remains available. The memo addresses HUD’s enforcement posture only. Residents denied ESA-related accommodations may still bypass HUD and file suit directly in court under the FHA.
• Some state and local enforcement agencies are unlikely to follow HUD. State and local civil rights agencies may continue to recognize ESA-related accommodation claims notwithstanding HUD’s new position. Some jurisdictions, including California, Illinois and New York City, have regulations, guidance and/or enforcement frameworks that expressly recognize ESAs in housing. Housing providers operating in multiple jurisdictions may now face more complexity, not less, because federal enforcement policy may diverge from state and local requirements.
• Documentation questions remain. HUD identified concerns with online certifications, registries, vests, licenses and similar materials, but the memo does not provide a detailed replacement standard for evaluating when documentation is reliable or sufficient.
• Timing issues remain unresolved. The 2020 Notice contemplated that while residents may request the accommodation after acquiring an animal, and even after lease enforcement begins, these facts may create an inference against good faith on the part of the resident. HUD’s rescission of that guidance reopens the question of how housing providers should treat late-disclosed service animals or requests made only after a violation is discovered.
• The memo likely will not “stem the tide” of ESA requests for housing providers.  Although the memo moves away from the prior ESA framework in the interest of reducing HUD’s caseload, housing providers will likely continue to receive requests involving exotic animals, multiple animals, or animals that raise health and safety concerns. The “cottage industry” over ESA letters also may shift to provide guidance to individuals seeking to train their pets to perform service animal functions.

If there is one key takeaway from our commentary, it is that housing providers should not automatically deny all requests involving untrained ESAs. This approach is not necessarily consistent with the FHA, or its state and local analog statutes, regulations and rules, which require case-by-case determinations for every accommodation request in housing.

Housing providers should instead continue to conduct individualized assessments, consider applicable state and local law, evaluate necessity and reasonableness of requests, and assess any health and safety or undue burden concerns. They should have policies, procedures and protocols for evaluating these requests and ensure that they are handled consistently and in compliance in the requirements of jurisdictions where these communities are located.  

And, when HUD engages in the promised future rulemaking, housing providers should consider submitting comments so that their interests, concerns and practical experiences can inform future regulations.

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