The U.S. Department of Housing and Urban Development (HUD) has issued new enforcement guidance that significantly changes how emotional support animals (ESAs) are viewed in the context of the Fair Housing Act (FHA). For community managers and POA boards, this marks a shift away from the broad protections that ESAs previously enjoyed, providing instead for a narrower definition of “assistance animal” that more closely aligns with that of the Americans with Disabilities Act (ADA).

A Major Shift: From ESAs to Trained Service Animals

For the past 6 years, the process for evaluating a request for reasonable accommodation that related to an assistance animal was governed primarily by two notices issued by the U.S. Department of Housing and Urban Development’s Office of Fair Housing and Equal Opportunity (the “FHEO Notices”):

• Notice FHEO-2013-01, issued April 25, 2013
• Notice FHEO-2020-01, issued January 28, 2020

These Notices provided that there were two types of assistance animals, each of which was provided certain protections under the FHA: (i) service animals, which are dogs that are individually trained to do work or perform tasks for the benefit of an individual with a disability; and (ii) other animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities.

Pursuant to these notices, housing providers were instructed not to treat either category of assistance animal as a “pet”. This meant that, under certain circumstances, housing providers (including POAs) could be required to grant reasonable accommodations from pet-related rules (e.g., breed restrictions, weight limitations, limitations on the number of pets, rules prohibiting pets from amenities, etc.) for untrained emotional support animals.

The status quo first changed on September 17, 2025, when HUD withdrew the 2013 and 2020 FHEO Notices. At that time, HUD took the position that federal agencies “should not use guidance documents in an attempt to create new rights or obligations that are binding on persons or entities outside of the Federal Government.” The memo withdrawing the FHEO Notices did not immediately replace them with additional guidance, leaving the issue of assistance animals under the FHA effectively unaddressed for several months.

On May 22, 2026, HUD issued a memorandum clarifying its current position on the issue of ESAs (the “Memo”). In the Memo, HUD’s Assistant Secretary states that “an entire industry has emerged to convert pets into emotional support animals” in response to the FHEO Notices, and that the FHEO Notices had failed to provide clarity on the “supposed distinction between pets and emotional support animals.”

The Memo states that, going forward, HUD will adopt an approach to animal-related reasonable accommodation requests that more closely mirrors that of the ADA. Specifically, HUD will only find reasonable cause to believe that a discriminatory housing practice has occurred with respect to the waiver of a pet policy only where the animal has been individually trained to perform work or perform tasks directly related to the complainant’s disability. Importantly, the Memo makes it clear that the provision of emotional support, comfort, or companionship alone does not qualify as the performance of work or tasks.

Are Emotional Support Animals Still Protected?

Pursuant to the Memo, an ESA that has been trained to do work or perform tasks for an individual with a disability is still protected, while untrained ESAs are no longer considered to be protected assistance animals.

It should be noted that the Memo only addresses HUD’s approach to housing discrimination complaints that involve an ESA. It is unclear what precedential weight Texas and federal courts will give to the Memo, as it is not a formally adopted rule or regulation. Further, many housing discrimination complaints in Texas are evaluated under the Texas Fair Housing Act (which mirrors the federal FHA but is not administered by HUD) and investigated by local agencies such as the Texas Workforce Commission. As of the date of this article, it is unknown whether any Texas agencies will adopt HUD’s approach.

Ultimately, the Memo provides a useful framework for evaluating ESA-related requests for reasonable accommodation, but POAs should consult with their legal counsel to address such requests on a case-by-case basis given the limited scope of the Memo.

The Memo closes by stating HUD intends to engage in formal rulemaking regarding this issue at a later date, in which case RMWBH will provide further updates.