Tuesday Tip
This week’s Tuesday Tip breaks down HUD’s recent enforcement memo on emotional support animals (ESA).
HUD’s recent enforcement memo regarding emotional support animals (ESAs) has generated a lot of discussion throughout the affordable housing industry. For some owners and agents, the biggest question is simple: Does this change how we handle ESA requests? The answer is not as straightforward as some headlines may suggest.
Before making changes to policies or procedures, it is important to understand what the memo does—and does not—do.
The Law Has Not Changed
One of the most important takeaways from the memo is that it does not change existing law.
Fair housing requirements still apply. Section 504 requirements still apply. Residents may still request reasonable accommodations involving assistance animals. The memo focuses on enforcement priorities. Specifically, it addresses how HUD’s Office of Fair Housing and Equal Opportunity (FHEO) plans to approach certain ESA-related complaints moving forward.
A change in enforcement priorities does not automatically change a housing provider’s legal obligations.
Guidance is Not Law
HUD’s ESA enforcement memo highlights a topic that often creates confusion in affordable housing: the difference between guidance and law. Federal agencies regularly issue guidance, notices, and policy interpretations. Those documents can help explain how an agency views a particular issue. However, guidance itself is not the law.
Owners and agents should be careful about making policy decisions based solely on a change in agency guidance or enforcement activity. When questions involve fair housing requirements, legal counsel should always be part of the conversation.
ESA Certifications
HUD also warns owners and agents of the growing number of online businesses that offer ESA certifications for a fee.
Many of these services provide documentation without establishing a meaningful relationship with the individual requesting verification. In those situations, housing providers may have reason to question whether the documentation comes from a credible source.
At the same time, staff should remember that some disabilities and disability-related needs may already be known or readily apparent.Every request should be evaluated based on its specific facts and circumstances.
Enforcement and Compliance
The affordable housing industry will continue to see policy changes, guidance updates, and enforcement announcements.
When those changes occur, the best approach is often the simplest one.
- Slow down
- Review the information carefully
- Understand the difference between guidance and legal requirements
Most importantly, seek legal advice before revising policies that affect fair housing compliance.
The recent HUD ESA enforcement memo may change how certain complaints are prioritized, but it does not remove the responsibility to evaluate accommodation requests carefully and comply with existing law.
