Pam Kazlauskas (00:01.336)
three, two, one. Hello everyone and welcome to today's Tuesday Tip. I'm Pam and today we're going to talk about the recent enforcement memo that HUD issued regarding ESAs and assistive animals.

The first thing I want to let you know is please remember that nothing in this video should be interpreted as legal guidance. It's very important, especially with fair housing, that owners and agents review their obligations and consult with an attorney as needed. So remember you're dealing with the Fair Housing Act, the ADA as it applies at your property, Section 504 of the Rehabilitation Act of 1973.

and then other applicable laws and statutes and regulatory guidance that may apply at your property.

So as of February 2025, all federal agencies have been instructed to review their policies to ensure that all policies are necessary to discharge their obligations. It's resulted in rescinding a number of instructions, guidance memos, et cetera. But this does not change law. Only Congress and the courts in some cases can end up changing law. So while certain elements of guidance have been

rescinded. The law has not moved. Essentially what is happening is that federal agencies are looking to reduce the amount of enforcement and other activities that they do to ensure that they are adhering to the guidelines but not expending resources that they don't need to expend. Existing instructions just say review your policies and then

Pam Kazlauskas (01:49.56)
deprioritize action based on looking at the best reading of a statute. So essentially they're supposed to be reducing the amount of enforcement and the amount of actions that they're engaging in to look at meeting the statute, but not overreaching. And that's resulted in a lot of confusion as to whether guidance is the same as law and it's not. The law is the law.

Guidance is an agency or an administration interpretation of that. So you just want to be very careful before you change anything. The memo also details the existing legal requirement and it acknowledges that there's an entire industry that is grown to sort of convert pets into assistive animals. So what you're really looking at is these online agencies that for a fee will certify that an animal is an ESA.

And those are really not credible agencies. There's no examination involved. The provider does not know the individual asking for the verification. So those online certification companies that don't require any kind of medical relationship, you can refuse those as verification. And you can request to have the existence of a disability and the need verified by a qualified provider.

Remember, there's also the provision that if a need is obvious or known, you don't necessarily have to get third party verification. So be careful with that. But you can refuse to take these non-credible online sources as verification. HUD's FHEO is going to be scaling back their enforcement action.

doesn't mean the law has changed again, but it means that FHEO will now only address and recommend charges when there is an trained animal involved. So an animal trained to provide assistance, those we normally refer to as service animals versus emotional support animals, those are the ones that HUD is going to be looking at. So FHEO is now really only going to be looking at complaints that involve service animals.

Pam Kazlauskas (04:13.421)
It doesn't mean that ESAs are not protected. It just means that FHEO is really going to be prioritizing looking at service animal complaints over ESAs and anyone who has an ESA complaint will really need to be taking that through a different channel. So remember this is only what FHEO will address. It doesn't limit other agencies. It doesn't change the law. It doesn't limit

liability for civil lawsuits to occur, it doesn't affect state statutes. So any state enforcement agencies may still be taking complaints about ESAs. This just means that HUD's FHEO is largely not going to be addressing those complaints.

Refusing to allow an ESA or requesting different conditions for an ESA under the Fair Housing Act and other things that affect you is very risky. Section 504 and current HUD guidance still makes it clear that ESAs are assistance animals. They're not service animals, but they are assistance animals under the Fair Housing Act. And the preamble to the Department of Justice's 2010 regulations

clearly state that the ADA definition of service animal is not what you should be looking at to reduce your fair housing obligations. So this memo that HUD issued only looks at what is FHEO going to be enforcing moving forward. It doesn't look at anything else.

The additional points that this memo also makes, it looks at legal precedent regarding individual discrimination complaints involving ESAs, especially with waiving fees, and it takes into account what some of those case judgments have said about ESAs versus service animals. It also puts all of the FHEO's current ESA cases on hold, because remember, they're not going to be looking at those.

Pam Kazlauskas (06:22.933)
And it advises that future efforts in this regard are going to be directed at aligning the definitions more closely with those in the ADA. But remember what the ADA covers versus what Section 504 covers are different things. So this is really going to be something that you want to pay attention to in the future. And remember that guidance and law are not necessarily the same thing. Key takeaways. Memo really just tells you that FHEO is where

is reducing its direct enforcement regarding complaints about ESAs, doesn't change law, and it does not change other avenues that your residents have to pursue complaints regarding ESAs. Always, always, always seek guidance from an attorney before you change policies or rewrite policies that is impacted by fair housing. It's very dangerous to change a policy without appropriate

legal guidance when it comes to Fair Housing. Now to find the memo, the HUD clips website doesn't seem to have it easily findable at this point. So the easiest way I've found is to go into your search bar and type HUD ESA enforcement memo, May 2026. That pulled up for me a lot of links and look, you're going to look for one that has a link to the memo itself.

So I have a link up on the screen for you now that does have a link to the exact memo. And that's really gonna be the best way. Navigate does not enforce any particular interpretation or reading of the memo. There is a pretty good one at that website link, but again, different attorneys may interpret things differently. So you wanna be seeking legal guidance when you have questions or to make sure that what you're doing confirms to the law.

We would always love to hear from you as far as what you would like to see on the next Tuesday Tips. Please feel free to email me and Mary at the link on your screen now and we will see you on the next Tuesday Tips.