In May, 2026 Housing and Urban Developments came out with new guidance regarding Emotional Support Animals (ESAs). The pendulum has finally swung back. What should landlords do now?
ESA Background
In 1988, the Fair Housing Act was amended to provide protections for people with disabilities. People with disabilities became a protected class and landlords were then required to provide “reasonable accommodations” to those with disabilities. The idea was to give everyone access to fair use of housing.
Accommodations included service animals, animals that are specially trained to assist people with a disability. An example would be a seeing-eye dog, or a dog trained to warn people of the onset of a seizure.
As behavioral health issues became more accepted as disabilities, courts and U.S. Housing and Urban Development (HUD) began interpreting reasonable accommodation to include assistance animals, even if not specially trained. An ESA was a term used to describe the type of animal which helped people with emotional problems simply by their presence. These ESAs required no special training. The type of animal gradually expanded as little guidance was given as to type, size, or breeds.
HUD issued guidance documents in 2013 and 2020 which further expanded protections for people with ESAs. ESAs were affirmed as assistance animals. Landlords and others were required to allow ESAs to accompany tenants and passengers without any proof of need or animal function. All that was required is a document from a healthcare provider (very broadly interpreted who this is) stating the person needed an ESA. There was no requirement to prove the animal was actually an ESA.
Landlords could not charge pet rent or even a pet deposit to persons with ESAs. HUD’s rationale was that if the animal was a nuisance or caused damages, the landlord would be able to evict or collect money after the fact, which rarely was possible. Simply asking the reason for the animal was feared to be grounds for a complaint to HUD and possible punitive action against the landlord.
In those days, even airlines were required to comply. Crazy reports of emotional support peacocks, rabbits, pigs, and even an alligator on airplanes showed up. The diagnoses of a disability requiring an ESA was often given electronically by healthcare providers who had never even examined the individual.
The wild ride came to an end in 2026.
ESA Rules Today
As ever, the government is somewhat cryptic about the rules. HUD now says that it will not “find reasonable cause for failure to provide a reasonable accommodation involving 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.”
Further, HUD states that it is not reasonable to accommodate for untrained ESAs. The landlord today must still take care to determine whether the animal is specifically trained to assist a person with a disability. The HUD has no new guidance on how to determine whether a person actually has a disability or not. Landlords generally should not inquire about obvious disabilities. However, it seems reasonable to ask for proof of a disability which is not immediately apparent, such as depression, but only if it is a follow up question to a potential tenant asking for the accommodation of an animal trained to assist with depression. If a disability is obvious, then it is reasonable to ask for proof of the animal’s training, but only if it is a follow up question to a potential tenant asking for the accommodation.
Caveats
As always, state and local laws may apply and it is very important to discuss with your attorney to create a policy. Once this policy is made, stick to it with every tenant.
Also, nothing in the new HUD guidance grants immunity from being named in a lawsuit by a tenant who brings a claim. The guidance only states what HUD will do if it receives a complaint.
This is an ever-evolving issue. Will landlords find a way to abuse this new guidance and discriminate against those with true disabilities? I hope not. I am hopeful that this will remove the hundreds or thousands of fraudulent pets masquerading as ESAs simply because a tenant states they are ESAs. There are countless people with behavioral health diagnoses who benefit from animal companionship. The previous rule lumped them in with scammers and abusers of the system and gave them a bad name. I hope the new rules clean this up and give a pathway for assistance animals to help those who actually need them.
