Q: There is a new case that was decided recently that says we can charge pet deposits for emotional support animals (ESAs). Can I now start to charge pet deposits for ESAs in Virginia?
A: If you’re strapped for time and just want a quick answer, it is no. No, you cannot charge pet deposits for ESAs in Virginia.
For those of you with more time, let’s explain why.
The case in question is Henderson v. Five Properties, LLC et al. It was decided in the U.S. District Court for the Eastern District of Louisiana on July 16, 2025. This is a Federal court, and it is part of the 5th Circuit (this will be an important fact later). If you would like to read the case, you can find a copy of it here.
This case looked at both the reasonableness of a landlord charging a pet deposit to everyone, including tenants with ESAs, and whether waiving the fee would be a reasonable accommodation for a tenant who had an ESA. This case was not about whether a tenant could have an ESA. The court reinforced long standing case law that says a landlord has to allow an ESA.
The tenant in this case submitted a reasonable accommodation request to waive the pet deposit for her ESA. The landlord refused because he claimed there was no nexus between the disability and the reasonable accommodation of waiving the deposit. In other words, the animal was allowed and that would help the tenant with their disability, but they would still owe the deposit. The landlord even offered a payment plan to collect the deposit.
The tenant argued that based on a HUD guidance document issued in 2020, [U.S. Dep’tHous. & Urb. Dev., FHEO Notice: FHEO-2020-01, Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act 3, 3 n.8, 14 (Jan. 28, 2020)], landlords were not allowed to charge pet deposits for ESAs because ESAs were not pets.
This court found that there was no nexus between the disability and waiving the pet deposit. The court determined that the pet deposit amount was reasonable and was equally applied to everyone.
You may be wondering how this happened in light of the existing guidance document that we have all been following since 2020. Well, another recent federal case, Loper Bright Enterprises v. Raimondo decided in 2024 that courts could review agency guidance (including guidance from HUD) and determine whether that agency guidance was persuasive or not. In this case, the Court found that the guidance document which stated a landlord could not charge a pet deposit for an ESA because an ESA was not a pet was not persuasive. Shortly after this case was decided, in September 2025, HUD removed the guidance document from its website, stating it was under review and should not be relied on while review was ongoing.
So, where does this leave landlords in Virginia? Virginia is in the 4th Federal Circuit, not the 5th Circuit where this case was decided. The 4th Circuit can find other Circuit cases persuasive, but those cases do not control our law. Said differently, if you start to charge a pet deposit for ESAs and are taken to court, the courts here may say the exact opposite of Louisiana.
Some readers may already know what I’m going to say next. While the judicial analysis here is interesting to some, or at least to us, Virginia Fair Housing law is crystal clear.
- 36-96.3:1. Rights and responsibilities with respect to the use of an assistance animal in a dwelling.
- A person with a disability, or a person associated with such person, who maintains an assistance animal in a dwelling shall comply with the rental agreement or any rules and regulations of the property owner applicable to all residents that do not interfere with an equal opportunity to use and enjoy the dwelling and any common areas of the premises. Such person shall not be required to pay a pet fee or deposit or any additional rent to maintain an assistance animal in a dwelling, but shall be responsible for any physical damages to the dwelling if residents who maintain pets are responsible for such damages in accordance with such documents or state law. Nothing herein shall be construed to affect any cause of action against any resident for other damages under the laws of the Commonwealth.
So, there you have it, while Federal Fair Housing law and Louisiana do not say you cannot charge a pet deposit; Virginia clearly, explicitly, and unequivocally states that you cannot charge a pet fee or deposit or any additional rent for an ESA.
What does Henderson v. Five Properties, LLC et al mean to you and your business? Nothing. Virginia law is clear and the answer remains the same. Regardless of this case, you cannot charge a pet fee or deposit or additional rent.
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