Pet Deposit vs Pet Fee vs Pet Rent: Where ESAs Fit in 2026

Two documents changed the pet deposit question in the last twelve months, and neither of them was a statute.

The first is a Federal Register notice, Docket No. FR-6571-N-01, published 6 April 2026, confirming that HUD's fair housing office had withdrawn eight guidance documents effective 17 September 2025. Two of the eight were the ones every pet-policy article on the internet still quotes: FHEO Notice 2013-01 on service and assistance animals, and FHEO-2020-01, the January 2020 notice on assessing a request to keep an animal as a reasonable accommodation. The second is an enforcement memo dated 22 May 2026, signed by the Assistant Secretary for Fair Housing and Equal Opportunity, that tells HUD's own investigators to use the training standard from the ADA when they decide whether an animal complaint has merit.

What did not change is 42 U.S.C. § 3604(f)(3)(B), the sentence that makes it unlawful to refuse "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." Congress has not touched it. The regulation under it, 24 CFR § 100.204, still opens with a blind applicant, a seeing eye dog, and a building with a no-pets policy.

So a landlord with one house and a pet clause is now working inside three layers that do not agree with each other: a statute that says one thing, a federal agency that has narrowed what it will enforce, and a growing set of state codes that never depended on HUD in the first place. This page is about the money part of that — deposits, fees, rent — and where each layer draws its line. I read the federal material at the Federal Register, Cornell's Legal Information Institute and the eCFR on 11 September 2026, and the state sections at their legislatures' own sites the same day, except Colorado, whose revisor blocks automated requests and is quoted from Public.Law's edition, current through Fall 2025. HUD's own site refused every tool I had for the memo itself, so its language below comes from law firm summaries published in June and July 2026, each of which cites the memo's filename. I own two rented houses in the Midwest. I am not a lawyer, and nothing here is advice about your applicant.

Three charges that are not the same instrument

Pet policies get written as if "pet deposit," "pet fee" and "pet rent" were three names for one idea. They are three different legal objects, and the statute that governs each is different.

A pet deposit is security. It is money you hold and must account for, and in every state I have read it falls under the general security deposit section — the cap, the holding rules, the itemization deadline, all of it. California is the clearest on this point. Civil Code § 1950.5(c), as amended by Stats. 2025 ch. 340 and in force since 1 January 2026, says a landlord "shall not demand or receive security, however denominated, in an amount or value in excess of an amount equal to one month's rent." However denominated is the operative phrase. A $500 pet deposit stacked on a full month's security is an over-collection there, no matter what the lease calls it. The one exception is for a landlord who is a natural person, or an LLC whose members all are, owning no more than two residential rental properties with no more than four units between them: two months instead of one, and even that falls away if the tenant is a service member. Most readers of this site qualify for that exception and most do not know it exists.

A pet fee is a nonrefundable charge, and its legality turns entirely on whether your state permits nonrefundable deposits at all. Some states bar nonrefundable deposits outright; some allow them only if the lease says "nonrefundable" in the way the section prescribes; some are silent. Colorado goes further. C.R.S. § 38-12-106, effective 1 January 2024, limits an additional security deposit for a pet animal to $300, requires that it be refundable, and caps pet rent at $35 per month or 1.5 percent of the monthly rent, whichever is greater. A flat nonrefundable pet fee on top of those two figures has no room to exist in Colorado. The section says nothing about assistance animals at all, which matters later.

Pet rent is rent. It is income the month it arrives, it is not held for anyone, and it is the instrument most states leave uncapped — Colorado's $35 or 1.5 percent is the exception rather than the pattern. Because it sits outside the deposit statute, it is also the charge landlords in capped states have migrated to. Whether that is wise depends on the local market and on whether your state has, or is about to get, a Colorado-style limit.

If you have never read your own deposit section, do that before you touch the pet clause; the caps, separate-account rules and interest obligations apply to a pet deposit exactly as they apply to the main one, and an over-collection is a violation on the day the money arrives.

What the withdrawal notice actually says, and what it does not

The April 2026 notice is four pages, and the two sentences that matter are near the end. First: "Any actions that do not comply with the text of the Fair Housing Act continue to be subject to enforcement by the Department." Second: the Act "provides that complainants may file a civil action in an appropriate Federal district court or state court within two years after the occurrence or termination of the alleged discriminatory housing practice. Nothing in this memo affects the rights of parties to seek redress in the proper court."

That is the shape of what happened in September 2025. Interpretation was withdrawn. The statute and the regulation stayed exactly where they were. The 2020 notice had been the document that told landlords, in plain language, that an assistance animal is not a pet, that a pet deposit or pet fee could not be charged for one, and how to evaluate a letter from a health professional. Its withdrawal removed the instruction sheet without removing the duty the sheet was describing.

The notice also lists the reasoning: FHEO withdrew everything that was not statutorily prescribed, or that it judged inconsistent with the statute, or that did not reduce compliance burdens. It says explicitly that the withdrawn documents "should not be relied upon as authoritative." If a template pet policy you downloaded still cites FHEO-2020-01 as its authority, that citation is now to a document HUD says nobody should rely on. The clause underneath it may still be right. The footnote is not.

The May 2026 memo, and which layer it moved

Eight months after the withdrawal, on 22 May 2026, the Assistant Secretary issued Enforcement Guidance – Assessing Requests for the Use of an Animal as a Reasonable Accommodation Under the Fair Housing Act. Its audience is internal: FHEO headquarters staff, the enforcement office, the regional directors. Its content, as reported consistently by Holland & Knight, Offit Kurman, Ward and Smith and the Disability Rights Education and Defense Fund, is this.

FHEO will now apply the training element of the ADA's service animal definition when it assesses animal accommodation complaints under the Fair Housing Act. It will find reasonable cause for a failure to accommodate only where the animal has been individually trained to perform work or tasks directly related to the complainant's disability. Requests to waive a pet policy for an untrained support animal are no longer treated as presumptively reasonable, and housing providers "are no longer expected by FHEO to categorically grant accommodation requests (including fee waivers) for untrained assistance animals." The memo cites a 2025 federal district court decision in Louisiana, Henderson v. Five Properties LLC, that found HUD's prior guidance unpersuasive. Open ESA complaints were put on hold for review under the new standard. One departure from the ADA text: the memo does not limit the animal to a dog.

Read the fee-waiver phrase again, because it is the one that reaches the money. Under the 2020 notice, charging a pet deposit or pet fee for an assistance animal — trained or not — was described as a violation. Under the 2026 memo, HUD's own investigators will not find cause on that complaint for an untrained animal. That is a change in what one agency will pursue.

It is not a change in the statute, and every one of those summaries says so. DREDF's brief puts it in one line: Congress has not changed the Act, and the reasonable accommodation requirement still applies. Offit Kurman's July 2026 note warns that "reduced HUD enforcement risk does not necessarily mean reduced litigation risk," and that the biggest mistake a provider can make is adopting a nationwide policy on the strength of the memo. The Department of Justice, which brings its own Fair Housing Act cases, had not announced a matching position as of that note. Private plaintiffs still have two years and a courthouse. And the memo has no effect whatsoever on the third layer, which is where most of the real risk now lives.

The ADA definition, since that is the test HUD borrowed

The service animal definition HUD imported is at 28 CFR § 36.104: "any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability." The work "must be directly related to the individual's disability," and the regulation closes the door on the other category by name: "the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks."

Two things about that regulation are worth having straight before you borrow it yourself.

It governs public accommodations — shops, hotels, clinics, the leasing office where you meet applicants. It does not govern the dwelling. A private rental house is not a place of public accommodation, and the ADA was never the source of a landlord's duty on animals inside the unit. The Fair Housing Act was. That is exactly why HUD's borrowing of the ADA test was news.

And the ADA's own rules on money are more generous to the handler than most pet policies. § 36.302(c)(8) forbids asking a person with a disability "to pay a surcharge, even if people accompanied by pets are required to pay fees," while allowing a charge for damage the animal causes if damage is normally charged to anyone. § 36.302(c)(6) limits inquiry to two questions — is the animal required because of a disability, and what work or task has it been trained to perform — and forbids demanding "documentation, such as proof that the animal has been certified, trained, or licensed." So even in the narrowest federal reading now on the table, a trained animal costs its handler nothing extra, and a certificate is not something you get to require.

The states that wrote the answer down, and did not wait for HUD

Here is the layer the memo cannot reach. A state legislature that put assistance animals into its own code owes nothing to FHEO's enforcement priorities, and state civil rights agencies investigate under state law.

Virginia is the cleanest example I found. Va. Code § 36-96.3:1, enacted 2017 and amended 2023, says a person with a disability who has an assistance animal "shall not be required to pay a pet fee or deposit or any additional rent to maintain an assistance animal," and in the same breath that the person "shall be responsible for any physical damages to the dwelling if residents who maintain pets are responsible for such damages." Where the disability or the need is not obvious, the landlord may request "reliable documentation of the disability and the disability-related need for an assistance animal," and subsection E lists who can supply it: a mental health service provider, a licensed professional acting within their license, a peer support group with actual knowledge, or a caregiver, reliable third party or government entity with actual knowledge. The definition in § 36-96.1:1 covers an animal that "provides emotional support that alleviates one or more identified symptoms or effects of a person's disability," and adds that an assistance animal "is not required to be individually trained or certified."

Read those two Virginia sections next to the May memo and you have the whole picture in one state. HUD would not find cause on a fee charged for an untrained support animal. Virginia's statute forbids that fee by name, and the Virginia Fair Housing Office does not answer to HUD's memo.

California took a different route and regulated the letter rather than the landlord. Health and Safety Code § 122318, added by Stats. 2021 ch. 168 and amended effective 1 January 2023, sets conditions a health care practitioner must meet before providing documentation for an emotional support dog: a valid, active license, with the license number, jurisdiction and type stated in the letter; a client-provider relationship of at least 30 days before the documentation is issued (waived for a person verified as homeless); a completed clinical evaluation of the need for the dog; and a notice to the client that falsely presenting a dog as a trained guide, signal or service dog is a misdemeanor. That section does not tell you whether you may charge. It tells you what a letter that meets state requirements has to show, which is the only useful test a landlord has when a same-day letter arrives from a website. California's own fair housing law, enforced by the state Civil Rights Department, protects support animals independently of federal guidance, and DREDF notes that its protection is not conditioned on training.

Those are two states. There are others with statutes of their own on assistance animals, on misrepresentation, or on both, and the only way to know whether yours is one of them is to open your fair housing chapter and search it for "assistance animal" and "support animal." A state that has neither phrase leaves you with the federal statute and whatever your courts have said about it, which after May 2026 is a less predictable place to stand than it was.

Where the money actually comes from when an assistance animal damages the unit

Every layer agrees on one thing, and it is the thing that keeps the risk manageable for an owner of one house: an assistance animal is not a licence to destroy the carpet.

The ADA regulation allows the damage charge. Virginia's statute allows it. The 2020 HUD notice allowed it while it existed, and nothing in its withdrawal moved that line in the tenant's favour. The mechanism is the ordinary one. The tenant's security deposit — the general deposit, collected inside your state's cap — is the fund. The itemized statement, inside your state's deadline, is the instrument. And the deduction has to clear the same wear-and-tear line as any other charge: scratched hardwood from an animal's claws is damage, worn traffic lanes in a nine-year-old carpet are not, regardless of who or what did the walking.

What you cannot do is build a separate pot for it. No animal-specific deposit for an assistance animal in a state that forbids one, no "cleaning fee" that only tenants with animals pay, no pet rent reframed as a "hygiene surcharge." Those are the surcharges the ADA forbids in public accommodations and Virginia forbids in housing, and the fact that HUD's investigators have narrowed what they will chase does not rename them.

The practical consequence for a small landlord is that the general deposit is doing more work than it used to, and its size is fixed by statute. In California a natural-person landlord with no more than two properties and four units can hold two months instead of one. If you qualify for that exception and have been collecting one month out of caution, the pet question is a reason to reconsider, because it is the only lawful place the risk can sit.

The request itself: what you may ask, and the answer that is always wrong

A request to keep an animal despite a no-pets clause is a request for a reasonable accommodation, and the same three questions apply to it that apply to a reserved parking space or a grab bar. Does the person have a disability? Is there a disability-related need for the accommodation? Is the accommodation reasonable — which for an animal means, in the statute's own words at § 3604(f)(9), that the tenancy would not "constitute a direct threat to the health or safety of other individuals" or "result in substantial physical damage to the property of others"?

When the disability and the need are obvious, you ask nothing. When they are not, the answer to what you may ask now depends on which layer you are standing in. Under the 2026 memo, HUD would not fault you for asking whether the animal is trained and what task it performs — the ADA's two questions. Under Virginia's statute, you may request reliable documentation from a listed source, and nothing more. Under California's letter statute, a document that lacks a license number, a jurisdiction and a 30-day relationship is a document that does not meet the state's own standard for an emotional support dog letter, and you are entitled to say so.

What is wrong in every layer is answering the request by pointing at the screening criteria. An animal accommodation is evaluated after the person qualifies, on its own facts, and it cannot appear on the page of criteria you wrote before the listing went up as a reason to decline. Breed, size and weight rules that apply to pets do not automatically apply to an assistance animal either; the direct-threat and substantial-damage tests in § 3604(f)(9) are about this animal, based on its own conduct, not about a breed list.

One more thing the withdrawal did not change. 42 U.S.C. § 3603(b)(1) exempts a single-family house rented by a private owner of no more than three such houses, without a broker and without discriminatory advertising, from most of § 3604. Some owners of one house read that and stop. Two reasons not to: state fair housing acts rarely carry the same exemption, and Virginia's animal statute, for one, has no small-owner carve-out of its own. The federal exemption is narrower in practice than its summary, and it is not a defence in a state agency proceeding.

Three lines for the pet clause, and the one to delete

The clause that survives all three layers is short, and it separates pets from assistance animals rather than pretending they are one category with an exception.

The first line sets the pet terms and names the instrument honestly: a refundable pet deposit of a stated amount, held with and subject to the same statute as the security deposit; or monthly pet rent of a stated figure; or, only in a state whose deposit section permits it, a fee marked nonrefundable in the words that section requires. Pick the instruments your state allows and write the amounts. If you are in Colorado, the ceiling is $300 refundable and $35 or 1.5 percent a month, and there is no third instrument.

The second line says that assistance animals are not pets, that no pet deposit, pet fee or pet rent applies to them, that requests are handled as reasonable accommodation requests under federal and state fair housing law, and that the tenant remains responsible for damage caused by any animal on the same basis as damage caused by any occupant. That sentence is drafted to the strictest layer you might be judged under, which is the safest place to draft to, and it costs you nothing in a state where HUD's narrower position happens to be the only one in force — you can still ask the two questions and still charge for the carpet.

The third line names your state's section. Not a HUD notice number, because the two everybody used to cite have been withdrawn and the memo that replaced them is an internal enforcement document that binds nobody but FHEO staff. A statute number, read on a date, in the lease packet, the way a clause that holds up always names its source.

The line to delete is any sentence that says "per HUD guidance." As of 11 September 2026 there is no HUD guidance on this subject that HUD itself will stand behind, and there is a memo that points in the opposite direction from the guidance your template was copied from. Cite the statute. It is the one document in this story that has not moved.

Warren Ashby is not an attorney. This page describes how the federal and state material reads on the date given and where to find your own state's section; it is not legal advice about your unit, your applicant or a request you have received. Offit Kurman's, Holland & Knight's and DREDF's summaries of the May 2026 memo are linked from the text because HUD's own copy was unreachable by automated tools on the day of writing — open the memo yourself before relying on any characterization of it, including this one.