Academy/Board Authority & Fiduciary Duties
Avoiding favoritism
Uneven rule enforcement is a legal risk, not just a fairness problem.
Favoritism, enforcing rules against some owners but not others, is more than a bad look. It can undercut the rule's enforcement, expose the board to a fair housing claim if a protected class is involved, and fall outside business judgment protection, because deference covers reasoned decisions, not arbitrary ones. Consistency, and a documented reason for every exception, is the fix.
Impartiality is part of the fiduciary duty
The duty of loyalty usually gets framed as a director putting the association's money ahead of their own. It also covers something quieter: treating owners the same way the board would want to be treated if the roles were reversed. A widely used industry ethics code states this directly.
"Perform their duties without bias for or against any individual or group of owners or nonowner residents."
Source: Model Code of Ethics for Community Association Board Members, Community Associations Institute
The protection courts extend to a board's reasoned decisions, the business judgment rule, does not stretch to cover a decision that singles out one owner for different treatment. A practitioner analysis of the doctrine puts it plainly.
"Lends no protection to conduct deliberately singling out for disparate treatment an owner or a class of owners, or arbitrary action."
Source: Steven S. Weil, Judging Directors, Berding & Weil LLP
What uneven enforcement costs the board
An owner facing a fine or violation notice can defend themselves by pointing out that the association let other owners break the same rule without consequence. A Florida court allowed exactly this defense in a dispute over a no pets rule that the association had been enforcing against a dog owner while letting cat owners keep their pets for years.
"The fact that cats are different from dogs makes no difference. What does matter is that neither a cat nor a dog is a fish or a bird, so both should be prohibited."
Source: Prisco v. Forest Villas Condominium Apartments, Inc., Florida Fourth District Court of Appeal
Whether your own state recognizes this exact defense, and what it is called, selective enforcement, waiver, estoppel, varies. Kansas has written a version directly into statute: a board that skips enforcement once does not lose the right to enforce later, but the board "may not be arbitrary or capricious in taking enforcement action." California applies a similar standard specifically to architectural review decisions. Check your own state's case law and your governing documents for the standard that applies to you.
A separate, federal risk: fair housing
The Fair Housing Act bans discrimination in housing based on race, color, religion, sex, familial status, and national origin, and separately bans discrimination based on disability. HUD summarizes the protected classes this way.
"Race, Color, National Origin, Religion, Sex, Familial Status, Disability."
Source: Fair Housing Act Overview, U.S. Department of Housing and Urban Development
The Act's own text does not use the phrase selective enforcement. But if uneven rule enforcement lines up with one of these protected classes, one owner's fence gets cited and a neighbor's does not, and the owners differ by race or disability, the exposure is not just a state law claim. It sits inside the same disparate treatment framework the whole Act is built on, a separate track of risk on top of anything state law provides.
Keeping enforcement defensible
None of this requires perfect enforcement, only consistent and documented enforcement. Three habits keep a board's decisions defensible: write down the standard before applying it, apply it the same way to every similar violation, and record the reason for any exception in the minutes rather than leaving it unexplained. A board that has already adopted a code of conduct or a conflict of interest policy already has the habit of writing standards down before a dispute happens; enforcement deserves the same treatment.
Check yourself
Answer before you read the explanation, recalling it is what makes it stick.
A board has let several cat owners keep pets under a "no pets" rule for years, then issues a violation notice to one dog owner citing the same rule. What should the board do first?
A board enforces a landscaping rule strictly against one owner, who is a wheelchair user, while letting several neighbors with similar violations go unaddressed. Beyond a state law selective enforcement claim, what risk does this create?
A board president approves a fence height variance for a friend, then denies an identical request from another owner two weeks later with no stated reason. Is that decision likely protected by the business judgment rule?
Sources
- Model Code of Ethics for Community Association Board Members, Community Associations Institute
- Prisco v. Forest Villas Condominium Apartments, Inc., Florida Fourth District Court of Appeal
- Kan. Stat. Ann. § 58-4608(c), Kansas Legislature
- Cal. Civil Code § 4765, California Legislature
- Judging Directors, Berding & Weil LLP
- Fair Housing Act, 42 U.S.C. §§ 3601, 3602, 3604, U.S. Congress, via Cornell Law School LII
- Fair Housing Act Overview, U.S. Department of Housing and Urban Development
Related elsewhere in the Academy
Board Authority & Fiduciary Duties
Next, look at how the board is enforcing rules right now: is there a written standard, and is it applied the same way to everyone?
Whether selective enforcement is a recognized legal defense, and what standard applies (arbitrary and capricious, waiver, estoppel), varies by state. Check your own state's case law and your governing documents' enforcement provisions.