Owner defenses

Three defenses built on the association's own record

These three defenses come up again and again, and all three turn on what the association has already done, not on what the rule says.

Waiver means the association gave up its right to enforce, through an action or through conduct that implies it gave up that right. Estoppel means the owner reasonably relied on something the association told them, to their detriment, such as a letter approving a change that later gets cited as a violation. Selective enforcement means the association let another owner's near-identical violation go unaddressed and is now going after this owner instead.

"Waiver is the intentional or voluntary relinquishment of a known right or conduct which infers the relinquishment of a known right." "Estoppel is the reasonable reliance upon a representation to one's detriment."

Source: Three Common Covenant Enforcement Defenses, Becker & Poliakoff

Selective enforcement has a limit worth knowing before you rely on it: it reaches the same or substantially the same violation, not every rule the association has ever let slide. Tolerating parking violations does not excuse an unrelated architectural rule. The owner carries the burden of proving whichever defense they raise, and how much evidence that takes varies by state case law. An owner or board weighing one of these should check their own state's cases with an attorney rather than assume the defense automatically works.

The reasonable accommodation defense

A different kind of defense shows up when an owner says a rule burdens a disability, most often in a no-pets community where an owner asks to keep an assistance animal. This is not a waiver or estoppel argument. It is a request under the federal Fair Housing Act, and it runs on its own framework.

"The accommodation must be necessary to afford a person with a disability an equal opportunity to use and enjoy a dwelling," and "housing providers are entitled to verify the existence of the disability, and the need for the accommodation, if either is not readily apparent."

Source: Joint Statement on Reasonable Accommodations Under the Fair Housing Act, U.S. Department of Housing and Urban Development

A board is not required to grant every request that invokes this defense. It can decline one that would be an undue financial and administrative burden, would fundamentally alter how the association operates, or where the animal itself poses a documented danger, not a guess based on breed or a general fear of animals.

What keeps a board's enforcement defensible

None of these defenses appear out of nowhere. They grow out of gaps in how a board actually enforces its rules over time.

"The governing board or its appointed hearing panel should ensure that all violations of rules and regulations of which the association becomes aware are enforced in a consistent, uniform manner using common sense."

Source: Rules Development and Enforcement, Community Associations Institute

Rule changes also need to reach owners through the association's normal communication channels before compliance is expected, so an owner who was never told about a new rule stands on firmer ground than one who ignored a notice. None of this means a board must fine every violation the moment it learns of one; courts generally protect a board's good faith, investigated decision not to enforce a minor or technical violation under the business judgment rule. What is not protected is silence. An undocumented pattern of looking the other way is exactly what feeds a later waiver or selective enforcement defense.