If you’ve served as a member of a community association’s Board of Directors for any length of time, chances are you’ve heard the term “selective enforcement” when you have attempted to enforce the covenants. There is good reason for this: the selective enforcement defence is one of the most commonly used defenses to a Board’s covenant enforcement action. There is much misunderstanding among Board members and homeowners as to exactly what selective enforcement means. The purpose of this article is to provide an explanation of the underpinnings of the selective enforcement defense and to provide some guidance for insuring that your Board’s decisions can withstand a selective enforcement challenge.
A Board has a duty to enforce the covenants of a community in a proceedurally fair and reasonable manner. The defense of selective enforcement arises when an owner argues a Board breached this duty.