Can a landlord still refuse an untrained emotional support animal?

Two things happened, eight months apart, and most reporting has fused them into one. In September 2025 HUD withdrew the guidance telling housing providers how to handle animal requests. In May 2026 it issued a memorandum telling its own investigators what to do in the resulting vacuum. Neither touched the Fair Housing Act, and neither touched the regulation the Act is enforced through. Knowing which layer moved is the difference between an accurate answer and the confident wrong one.

What HUD withdrew, and when

The withdrawal was not specific to animals. FHEO pulled nine guidance documents at once, covering limited English proficiency, criminal-record screening, source-of-income testing and digital advertising. Two of the nine were the assistance-animal notices: FHEO Notice 2013-01, issued 25 April 2013, and FHEO 2020-01, issued 28 January 2020.

The notice was published in the Federal Register on 6 April 2026 at 91 FR 17291, docket FR-6571-N-01, effective 17 September 2025. Its reasoning is the same reasoning that limits its own effect: guidance documents, HUD says, "do not carry the force and effect of law", and "parties understand that guidance is non-binding and does not create substantive rights". The internal memorandum carrying the withdrawal added that it "is not necessarily final".

Guidance interprets the Act. It does not amend it.

This is the sentence the rest of the page hangs on. The prohibition lives in the statute: under 42 U.S.C. § 3604(f)(3)(B), discrimination includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling". The regulation at 24 CFR 100.204 repeats it almost word for word, and 24 CFR 100.203 does the same for physical modifications. Congress last amended the disability provisions in 1988. Neither regulation has been amended by any of this.

What changed is the layer on top: how HUD reads that sentence when choosing which complaints to investigate. An agency may change its enforcement priorities, and a court is not obliged to follow it when it does. So the honest answer to "did HUD ban emotional support animals" is no — HUD cannot. It stopped enforcing one reading of the Act.

So can a landlord refuse an untrained emotional support animal?

A landlord can refuse, and HUD will not now bring a case about it. The 22 May 2026 memorandum — issued by Assistant Secretary Craig Trainor, titled "Enforcement Guidance: Assessing Requests for the Use of an Animal as a Reasonable Accommodation Under the Fair Housing Act" — directs FHEO to find reasonable cause only where the animal is individually trained to do work or perform tasks directly related to the complainant's disability. Trained animals remain presumptively reasonable; untrained ones are no longer something HUD expects providers to grant as a category.

What the memorandum does not do is decide the case. A refusal HUD declines to pursue is still a refusal a court can review, and courts have found for tenants with untrained animals before. In Bhogaita v. Altamonte Heights Condominium Ass'n, 765 F.3d 1277 (11th Cir. 2014), a tenant with PTSD kept an emotional support dog over an association weight limit; the animal had no training, the psychiatrist's letters said nothing about training, and the Eleventh Circuit upheld a verdict for him. That is binding precedent in its circuit, and no memorandum removes it.

State law is the part most readers underestimate, and nothing HUD did touches it. In July 2026 California's Civil Rights Department issued a legal alert to all California housing providers and tenants stating that the state's fair housing laws still require providers to allow emotional support animals that have not been trained or certified, despite the federal reversal. Its regulation at 2 CCR 12185 remains in force and is materially stricter than the new federal position. The state question now matters more than the federal one.

The ADA test and the housing test have never been the same

The alignment makes this distinction more important to explain, not less: the two regimes are being pulled together on one axis and left apart on every other. Under the ADA, 28 CFR 35.104 defines a service animal as "any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability", and says outright that "the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks". That is a rule about restaurants, shops and transit.

The asymmetry is the practical trap. A provider applying the ADA's definition while keeping the FHA's verification practice combines the narrowest reading of both; one applying the ADA's two-question limit in housing has given up an inquiry the FHA permits. Neither statute, on its own, produces the test HUD now enforces.

What a housing provider may ask you for

The withdrawn 2020 notice was where the documentation rules lived, so there is currently no federal guidance on this at all. What survives is the case law, and it is narrower than most landlords assume. Bhogaita held that a provider is entitled only to the information necessary to apprise it of the disability and of the desire and possible need for an accommodation — not to a medical file — and that indeterminate delay caused by escalating requests has the same effect as an outright denial.

Pet fees, deposits and damage are three separate questions

Where an accommodation is granted the animal is not a pet, and pet charges do not follow it. That was always a consequence of the accommodation rather than of a fee-specific rule: charging for the thing the law obliges you to permit takes the benefit back. HUD's new position narrows this in one direction only — providers are no longer expected to waive fees for untrained animals as a category — and leaves it intact for a trained one.

Liability for damage is untouched. The tenant pays for what the animal breaks. The parallel is 24 CFR 100.203(a), which lets a landlord require restoration but forbids increasing the customary security deposit because of the disability: the cost of actual harm travels, the surcharge does not. In practice the argument is about the move-in record, as with any other deposit deduction — so a dated property inspection report at both ends beats any clause.

When a request can be refused even for a trained animal

An accommodation has never been automatic. Four limits do real work.

• Direct threat. 42 U.S.C. § 3604(f)(9) provides that nothing in the subsection requires a dwelling to be made available to someone whose tenancy "would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others". That rests on an individualised assessment of the specific animal's conduct — not breed, size, or what another animal did.
• Unreasonableness. A request imposing an undue financial or administrative burden, or fundamentally altering the provider's operation, is not reasonable. For one animal in one unit that defence rarely succeeds.
• No nexus. The duty attaches to an accommodation "necessary to afford such person equal opportunity". No disability, or no connection between it and the animal, means nothing to accommodate.
• The dwelling may be exempt. Under 42 U.S.C. § 3603(b) the § 3604 prohibitions do not reach a single-family house rented by an owner of no more than three, nor units in an owner-occupied building of no more than four households. State law often closes that gap; federal law does not.

If you are refused, the clock is the thing to watch

Two deadlines run from the refusal. A complaint to HUD or a substantially equivalent state agency must be filed within one year of the practice occurring or terminating, under 42 U.S.C. § 3610(a)(1)(A)(i). A private civil action has two years under § 3613(a)(1)(A), and § 3613(a)(2) makes clear a HUD complaint is not a prerequisite.

1. 1

   Fix the date of the refusal

   Both clocks run from it, and a verbal "no" with no paper trail is the usual reason a claim becomes unprovable. Follow the conversation with a short email recording what was said and when.

2. 2

   Send the request or the follow-up in writing

   Name the disability-related need and describe what the animal does. Ask for a decision by a stated date; silence past it is evidence, since indeterminate delay has been treated as constructive denial.

3. 3

   Choose the forum on the state law, not the federal position

   Where the state agency applies a broader definition — as California's does — a state complaint may succeed on facts HUD will now decline. Check whether yours is the substantially equivalent agency before assuming HUD is the venue.

4. 4

   File before the shorter clock expires

   One year for the administrative route, two for court. Filing administratively does not consume the two-year window: time an administrative proceeding is pending is excluded from it.

The pages that have not caught up

The commercial ESA-letter industry was built on a single line in a withdrawn notice and has not updated. A letter bought after a fifteen-minute online questionnaire was weak evidence when FHEO 2020-01 was live; it is now evidence for a test HUD no longer applies. The sites selling them are still quoting the notice HUD removed.

The useful position is the unglamorous one: the statute and the regulation still say what they said, the agency has stepped back from one reading, and the forums that remain — a private action, a state agency — are slower and dearer than the one that closed. For a landlord the mirror image comes with a caveat worth more than the rest: an enforcement memorandum is the most easily reversed layer of law there is, and a policy rewritten to the floor of it will need rewriting again. Reading the lease terms you actually signed against the statute, rather than against whichever guidance is current, is the only version of this that keeps working.