When not to enforce
A board can skip enforcing a violation and still be doing its job right, if it does it the right way.
A board does not have to fine every violation it becomes aware of. The business judgment rule protects a decision not to enforce, as long as it is made in good faith, after investigation, and is not arbitrary. Leave that decision undocumented, though, and it can hand a later owner a waiver or selective enforcement defense.
Boards get to choose
Not every violation deserves a fine. A hairline crack in a driveway, a shed six inches over the line with no neighbor complaint, a paint shade one tone off, these are exactly the kind of calls a board is allowed to make deliberately and decide to let go.
The legal footing for that call is the business judgment rule: the standard that protects a board's good faith, informed, non-arbitrary decisions from being second-guessed by a court. It covers not just whether to enforce, but when and how.
"Covenant enforcement may require the exercise of discretion as to both the timing and manner of enforcement."
Source: Covenant Enforcement: The Role of the Business Judgment Rule, Altitude Community Law
The word doing the work here is discretion, not license. Protection depends on the board actually looking into the facts and acting in good faith, not on the board simply not getting around to it.
Doing nothing has a cost too
Skipping one violation is a decision. Skipping the same kind of violation over and over, for different owners, without ever saying why, starts to look like something else.
"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
An owner who gets fined after watching the same violation slide for everyone else has three defenses available, and the burden is on them to prove one: waiver (the intentional or voluntary relinquishment of a known right), estoppel (reasonable reliance on a representation, to their detriment), or selective enforcement, tolerating a violation by one owner and then enforcing the same conduct against another. Owner defenses covers how all three actually get argued.
What a defensible pass looks like
The gap between a protected business decision and a future liability is mostly paperwork. Note the violation, note the reason it is not worth pursuing (cost, triviality, no real harm to the community), and note the date. That single line in a board packet is what turns "we didn't feel like it" into "the board considered it."
Then apply the same reasoning the next time the same violation shows up. Whether your bylaws or enforcement policy require this decision to be recorded in the minutes, and in how much detail, is not the same everywhere, check your own governing documents.
If a rule keeps not getting enforced, year after year, across the whole community, that starts to look less like a series of good judgment calls and more like the association giving up on the rule entirely. Waiver and abandonment arguments covers that harder, community-wide version of the same problem.
Check yourself
Answer before you read the explanation, recalling it is what makes it stick.
A board finds a small crack in a driveway that technically violates a materials rule. It checks the file, decides pursuing it would cost more than it's worth, and writes that reasoning into the minutes. Why is this decision likely protected?
For six years, a board has let owners paint mailboxes any color with no notice ever sent. Then it fines one owner for painting theirs purple. What can that owner argue?
A board has quietly stopped enforcing a fence height rule for years, with no minutes, no records, and no stated reason anywhere. What has the board actually done?
Sources
- Covenant Enforcement: The Role of the Business Judgment Rule, Altitude Community Law
- Rules Development and Enforcement, Community Associations Institute
- Three Common Covenant Enforcement Defenses: Waiver, Estoppel, and Selective Enforcement, Becker & Poliakoff
Related elsewhere in the Academy
Covenant Enforcement
Next, see how these same defenses play out when a board decides to enforce: Owner defenses.
Whether a decision not to enforce needs to be recorded in the minutes, and what counts as a valid reason, is not spelled out the same way in every state or every set of bylaws.