In a recent memo to supervisors and staff of the Office of Fair Housing and Equal Opportunity (FHEO), the U.S. Department of Housing and Urban Development (HUD) recently signaled a significant shift in its approach to emotional support animals (ESAs) under the Fair Housing Act (FHA). 

While HUD's prior guidance generally treated emotional support animals as a form of assistance animal entitled to reasonable accommodation protections, now the agency states it “will find reasonable cause and recommend charges only for those cases involving animals trained to provide disability-related assistance.”  

The change has generated substantial discussion among housing providers, community associations, cooperative corporations, condominium boards, and individual unit owners.

Here is what you need to know:

Are ESAs still a covered accommodation?

The Fair Housing Act itself has not changed. Congress did not act to amend the statute, HUD has not yet promulgated new rules, and no court has ruled that ESAs are excluded from housing protections. HUD has simply decided to stop enforcing its prior policy favoring disabled individuals who seek a reasonable accommodation to keep an ESA in a no-pets building. The decades of decisional law interpreting the FHA and a disabled person’s right to maintain an ESA upon a proper showing of a need for an accommodation remain binding authority upon the courts.  

The issue of ESAs goes back at least to a 1981 U.S. Circuit Court decision setting forth the rule that enforcement of a no-pet policy against a person seeking an accommodation premised on a disability effectively deprives the tenant of the benefit of the housing program. There, the tenant alleged, “a mental disability which requires the companionship of her pet dog, and letters from a physician and several social workers submitted . . .  indicate that she has a psychological and emotional dependence upon her pet dog, Sparky, a small poodle.”

Recently, and possibly in spite of HUD’s memo – or perhaps because of it – a recent settlement agreement between the United States and a Long Island housing provider may be instructive on what’s to come.  

Commenced on behalf of a minor with a disability and his mother, the United States alleged that the East Hampton Housing Authority’s denial of the child’s request for a reasonable accommodation to keep a dog in the no-pet rental premises was an unlawful refusal to provide an accommodation, and further that the housing provider’s distribution of written information advancing a per se refusal to provide a reasonable accommodation for ESAs was a discriminatory practice in violation of the family’s rights under the FHA. The housing provider agreed to pay the family $82,500 in damages, and the family avoided private litigation for State and Local violations. 

What, if anything, does this mean for disabled New Yorkers and requests for reasonable accommodations?

New York's Human Rights Law requires housing providers to grant reasonable accommodations to disabled individuals with the demonstrated need for ESAs. New York City residents are further covered by the NYC Human Rights Law. Other localities, such as Suffolk County and Westchester County, also have their own local laws protecting the rights of individuals from discrimination on the basis of disability. These laws remain unaffected by HUD’s new position.

What should Boards expect going forward?

Boards should resist the temptation to adopt blanket denials of ESA requests. Each request should continue to be reviewed on an individualized basis and with the advice of legal counsel when appropriate.  Boards should further be cognizant of potential retaliation claims which could have lingering effects well after the discrimination claims are resolved.

The First Department recently affirmed the denial of a Board’s motion to dismiss a discrimination complaint for failure to properly consider an ESA accommodation request.  (Zelmanovich v. Eastmore Owners Corp., 248 AD3d 679 [1st Dept 2026].) There, the plaintiff brought claims under the FHA, and State and City Human Rights Laws.  At issue was whether the Board discriminated against the plaintiff when, among other things, it refused to discuss the accommodation request for a medically prescribed emotional support dog, even after receiving the necessary requested documents. The courts’ orders sustaining that complaint should be instructive; New Yorkers’ rights to a reasonable accommodation upon the appropriate facts and circumstances is well-preserved.

New York City landlords and some Boards* must also remain cognizant of the City’s Pet Law (Administrative Code § 27-2009.1). If the terms of the lease or declaration restrict dogs, legal action to enforce that rule must be taken within 90 days of learning about the dog; otherwise, the restriction is waived and becomes unenforceable absent some other reason such as danger or damage, for example.

Boards and landlords should also recall that the accommodation to maintain an ESA should be a reasonable one.  Examples of instances where the accommodation is unreasonable are fact-specific.  

Ordinarily, a dangerous animal, or one that causes damage, injury, or unreasonable noises or smells, is generally considered outside the bounds of what Boards, landlords, and other occupants should be expected to endure. However, and as demonstrated in a 2024 lawsuit concerning allegedly noisy parrots and a Cooperative’s $165,000 payment for the shareholder’s pain and suffering, careful consideration should be given to each request.

What next? 

Now, and according to the memo, complainants seeking help from the FHEO concerning ESAs will not be provided assistance from their regional office. Recognizing this futility, complainants will likely choose to seek redress in the State or City agencies and courts. Whether the State’s and City’s agency offices will see increased burdens as a result of the new policy, or reduced funding from the Federal Government, remains to be seen.  

The statute of limitations under each set of laws may have been dictating a complainant’s filing options well before HUD’s new stance. Under the FHA, claims of housing discrimination must be filed within one year of the last date of the alleged discrimination.  

Meanwhile, under New York State’s Human Rights Law, the statute of limitations is three years – an extension from one year after Gov. Hochul signed S3255/A501 in 2023. As for the New York City discrimination laws, complainants have three years to bring such an action in court.

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If you have questions about what this memo may mean for you or for Boards of HOAs, Co-ops, and Condo Boards, please connect directly with Michelle P. Quinn at mpq@gdblaw.com or Beth M. Gazes at bmg@gdblaw.com. *Pursuant to current appellate court authority, the Pet Law applies to condominiums only in Brooklyn, Queens, and Staten Island.