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One of the questions I have been asked most frequently over the past several weeks is whether HUD's new interpretation of the Fair Housing Act means that people with disabilities who rely on emotional support animals ("ESAs") will have a more difficult time obtaining housing.
The short answer is yes, but with an important qualification.
HUD has not changed the Fair Housing Act. Congress has not amended the law. Instead, HUD has changed the way it intends to enforce the Act.
Under its new policy, HUD has rescinded its 2020 guidance regarding emotional support animals and announced that, in most cases, it will pursue enforcement only where the requested accommodation involves an individually trained service animal, rather than an untrained emotional support animal.
1.What Does This Mean in Practice?
The practical effect could be significant.
Under the prior guidance, an applicant with a disability who provided reliable medical documentation supporting the need for an emotional support animal generally had a strong basis for requesting a reasonable accommodation, even in a building with a "no pets" policy.
Under HUD's new policy:
- Housing providers may believe there is less risk in denying requests involving emotional support animals.
- Buyers and tenants who rely on ESAs may have less leverage through HUD's administrative complaint process.
- As a result, more ESA accommodation requests may be denied than in the past.
2.Does This Mean Emotional Support Animals Are No Longer Protected?
No. HUD's enforcement policy is not the same as the law.
The Fair Housing Act itself has not changed, and many federal court decisions have recognized that an emotional support animal may constitute a reasonable accommodation for a person with a disability. Those decisions remain in effect unless they are overturned by the courts or Congress changes the statute.
3.Why This Matters in New York
For New York real estate professionals, the analysis does not stop with federal law.
The New York State Human Rights Law and the New York City Human Rights Law often provide broader protections for individuals with disabilities than federal law. In many situations, a co-op, condominium, landlord, or managing agent could comply with HUD's new enforcement policy yet still face potential liability under New York State or New York City law.
Accordingly, housing providers should continue to evaluate accommodation requests carefully and should not assume that HUD's policy automatically permits the denial of an emotional support animal request.
4.What Should Real Estate Agents Do?
If you are representing a buyer or tenant with an emotional support animal:
- Do not assume the request will automatically be approved.
- Encourage your client to make the accommodation request early in the transaction.
- Advise your client to obtain appropriate documentation from a qualified healthcare provider.
- Encourage your client to consult with experienced legal counsel if an accommodation request is denied.
Final Thoughts
HUD's new policy represents one of the most significant changes to federal fair housing enforcement in recent years. While it is likely to make obtaining accommodations for emotional support animals more challenging, it does not eliminate the protections afforded by the Fair Housing Act or the broader protections that may exist under New York State and New York City law.
As this area of the law continues to evolve, brokers, agents, landlords, co-op boards, and condominium boards should proceed with caution and seek legal guidance before making decisions that could expose them to fair housing claims.
Questions about emotional support animals, service animals, or other fair housing issues? Feel free to contact me. I would be happy to discuss your questions or present this topic at your office.
Best Regards,
Keith
Schuman & Associates - "Because Experience Matters"
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