HOA Selective Enforcement: When Rules Are Enforced Unevenly

Few things feel more unfair in an HOA than a violation letter for something half the street is also doing. "Selective enforcement" is the name for that situation: an association enforcing a rule against some owners while overlooking the same conduct by others. It also has a flip side, where an owner wants a rule enforced against a neighbor and the HOA won't act.

This guide explains how the idea works in general terms, how a few state statutes describe a board's enforcement discretion, and what the law says about owners enforcing covenants themselves. Selective-enforcement questions are highly fact-specific, so for your specific situation a licensed attorney in your state is the right resource. This is general information, not legal advice.

What "selective enforcement" means

Selective enforcement is a fairness argument about how a rule is applied, not whether the rule is valid. A covenant can be enforceable on paper and still be applied in a way an owner challenges as improper, such as fining one owner for a shed the board has tolerated on many other lots. It usually shows up in two related forms:

• Uneven or arbitrary enforcement. The association enforces the rule against one owner but not against others in a comparable position, without a rational reason for the difference. Owners typically raise this as a defense to a fine or an enforcement lawsuit.
• Waiver or abandonment. Owners sometimes argue that a restriction has been ignored so widely, for so long, that its original purpose has effectively been given up and the covenant should be treated as waived or abandoned. Whether a court accepts that argument depends on the state's case law and the facts, and it is generally viewed as a harder argument, because it asks a court to stop enforcing the rule for everyone, not just to excuse one owner.

Much of this comes from court decisions rather than a single statute, and details vary by state. Florida's case law on uneven enforcement is covered in Selective Enforcement: How Florida Courts Treat Uneven HOA Enforcement. Many declarations also contain a "non-waiver" clause stating that the association's failure to enforce a provision does not waive its right to enforce it later. How much weight a court gives that clause depends on the state and the facts.

How state statutes frame HOA enforcement discretion

Statutes generally give boards room to decide when and how to enforce, but several also put limits on that discretion. A few examples:

Texas. Texas Property Code § 202.004(a) gives a property owners' association a presumption of reasonableness, with an exception that lines up closely with selective-enforcement arguments. An exercise of discretionary authority concerning a restrictive covenant "is presumed reasonable unless the court determines by a preponderance of the evidence that the exercise of discretionary authority was arbitrary, capricious, or discriminatory." The association starts with the benefit of the doubt; the challenger has to show one of those three things.

Washington. Washington's Uniform Common Interest Ownership Act spells out board discretion directly. Under RCW 64.90.405(8), the board "does not have a duty to take enforcement action" if it determines, among other reasons, that a violation "is not so material as to be objectionable to a reasonable person or to justify expending the association's resources." But RCW 64.90.405(9) adds that a decision not to enforce in one situation does not stop the board from enforcing in another, "but the board may not be arbitrary or capricious in taking enforcement action." Discretion is allowed; arbitrariness is not.

Florida. Florida's main HOA statute, Chapter 720, makes the governing documents binding on everyone, including the association itself. Fla. Stat. § 720.305(1) states that "each member and the member's tenants, guests, and invitees, and each association, are governed by, and must comply with, this chapter, the governing documents of the community, and the rules of the association."

These statutes do not operate alone. The association's own declaration (CC&Rs), bylaws, and rules set the actual enforcement procedures, and most HOAs are also organized under the state's nonprofit corporation law. Federal law adds another layer: the Fair Housing Act makes it unlawful to discriminate "in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin" (42 U.S.C. § 3604(b)), and § 3604(f)(2) covers discrimination because of a handicap. Enforcement that singles out owners on a protected basis can raise fair-housing issues separate from ordinary selective-enforcement arguments. For how state law can override particular rules altogether, the site's state-by-state series (for example, unenforceable HOA rules in Washington) and the HOA rules and enforcement topic hub go further. For complaints between neighbors, such as noise, Noisy Neighbor in an HOA? covers what an association can and can't do.

What evidence typically comes up

Because selective enforcement turns on comparison, the evidence usually centers on what else is happening in the community and what the board knew about it. Homeowners and attorneys commonly describe:

• Photos of comparable conditions elsewhere in the community, with addresses and dates, showing the same type of conduct under the same rule.
• A timeline, since a pattern over time tends to say more than a single snapshot.
• Association records, such as violation logs, architectural approvals, and board minutes, which can show whether the board knew about other violations or approved similar requests. Many states give members a right to inspect association records; the HOA records requests topic hub and state guides such as Florida, California, and Texas explain what those laws cover.
• The rule's own history, such as a recent amendment or a newly announced enforcement policy.

Whether any of this is enough depends on how similar the other situations really are; a neighbor with an approved variance, or a condition that predates the rule, may not count as comparable. Where a fine is involved, the hearing is often where these facts first come up; What to Say at an HOA Hearing and state guides like Texas HOA fines under Chapter 209 cover that stage.

When the HOA won't enforce a rule against a neighbor

Statutes like Washington's make clear that a board generally has discretion not to pursue every violation, so a decision not to act is not automatically improper. But some states give individual owners a direct path of their own.

California. Cal. Civ. Code § 5975(a) provides that the covenants and restrictions in the declaration (see What Are CC&Rs and Are They Legally Binding?) are enforceable equitable servitudes, "unless unreasonable," and that "unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both." Section 5975(b) draws a distinction for other governing documents, such as rules, which "may be enforced by the association against an owner of a separate interest or by an owner of a separate interest against the association." For certain enforcement actions, § 5930(a) adds that an association or a member "may not file an enforcement action in the superior court unless the parties have endeavored to submit their dispute to alternative dispute resolution."

Florida. Fla. Stat. § 720.305(1) states that actions to address a failure to comply with the statute, the governing documents, or the rules "may be brought by the association or by any member against" the association, a member, a director or officer "who willfully and knowingly fails to comply with these provisions," and tenants, guests, or invitees. Separately, § 720.311(2)(a) provides that certain disputes between an association and a parcel owner, including "covenant enforcement disputes," "shall be the subject of a demand for presuit mediation served by an aggrieved party before the dispute is filed in court."

These paths come with real cost and risk. Both statutes shift attorney fees: California § 5975(c) says "the prevailing party shall be awarded reasonable attorney's fees and costs," and Florida § 720.305(1) says the prevailing party "is entitled to recover reasonable attorney fees and costs." An unsuccessful case can mean paying the other side's fees. Whether a direct action is available, and whether it makes sense, depends on the declaration, state law, and the facts, which is why owners weighing it generally talk to a licensed attorney first. The HOA disputes and help topic hub and Can I Sue My HOA? give broader context.

The bigger picture

State statutes tend to give boards real discretion while drawing a line at enforcement that is arbitrary, capricious, or discriminatory. The governing documents, state case law, and federal fair-housing law all shape where that line falls. For the laws that apply in each state, HOA laws by state is a starting point.

Frequently asked questions

What is selective enforcement in an HOA?

It describes an association enforcing a rule against some owners while ignoring the same conduct by others. Owners commonly raise it as a defense to a fine or enforcement action, and how it applies depends heavily on state law and the facts.

Can an HOA enforce a rule it has ignored for years?

Sometimes. Many declarations include a non-waiver clause, and statutes like Washington's RCW 64.90.405(9) say that not enforcing in one situation does not prevent enforcement in another, "but the board may not be arbitrary or capricious in taking enforcement action." Whether past non-enforcement limits a new enforcement effort is fact-specific and varies by state.

Can I enforce the CC&Rs against my neighbor myself?

Some state statutes allow it. California Civil Code § 5975(a) says declaration restrictions may be enforced "by any owner of a separate interest or by the association, or by both," unless the declaration says otherwise, and Florida § 720.305(1) allows actions by "any member" against another member. Both statutes award attorney fees to the prevailing party, so the financial risk cuts both ways, and California's § 5930 requires the parties to have endeavored to use alternative dispute resolution before certain enforcement suits are filed.

Is the HOA required to enforce every rule violation?

Not necessarily. Washington's RCW 64.90.405(8) lists situations in which the board "does not have a duty to take enforcement action," such as a violation that is not material enough to justify spending the association's resources. Other states leave more of this to the governing documents and case law.

Sources

• Texas Property Code § 202.004 — Enforcement of restrictive covenants
• Florida Statutes § 720.305 — Obligations of members; remedies at law or in equity
• Florida Statutes § 720.311 — Dispute resolution
• California Civil Code § 5975 — Enforcement of governing documents
• California Civil Code § 5930 — Alternative dispute resolution before an enforcement action
• Revised Code of Washington § 64.90.405 — Association powers and duties
• 42 U.S.C. § 3604 — Fair Housing Act, discrimination in the sale or rental of housing