If you serve on the board of a California homeowners association, HOA selective enforcement is the defense you should expect the moment you enforce a rule against an owner who can point to a neighbor doing the same thing. The owner will say the board picked a target. Borna Houman Law advises association boards and property owners from our office at 2530 Wilshire Blvd in Santa Monica. In our experience, the defense is raised early in most contested CC&R enforcement matters.
A selective enforcement defense fails in California when the board can show it followed its own procedures, acted in good faith, and had a documented reason for treating two owners differently. One or a few overlooked violations do not waive a restriction, and an association has five years from discovery to sue under Code of Civil Procedure section 336(b).
The defense succeeds when the board cannot produce a hearing notice, findings, or an explanation for the neighbor who was left alone.
For association boards and property owners. If an owner has answered a violation notice with a selective enforcement claim, we will review the enforcement history before the board takes its next step. Call (888) 42-BORNA to schedule a confidential consultation.
What is the legal test for selective enforcement in California?
The question is whether the board enforced a restriction against one owner while excusing comparable violations without a reasoned basis. No California statute defines selective enforcement. The standard comes from the California Supreme Court in Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, which requires an association to act “in good faith, not in an arbitrary or capricious manner,” with enforcement procedures that are “fair and applied uniformly.”
The board carries the first burden when it is the plaintiff. Under Ironwood Owners Assn. IX v. Solomon (1986) 178 Cal.App.3d 766, an association suing to enforce its CC&Rs must show that it followed its own standards and procedures, that those procedures were fair and reasonable, and that its substantive decision was made in good faith and was reasonable, not arbitrary or capricious.
The comparison to other owners is part of the same inquiry, and the board should be ready to prove what it did about them. In Pacific Hills Homeowners Assn. v. Prun (2008) 160 Cal.App.4th 1557, the court treated the association’s response to a neighbor’s violation as something the association had to show. In Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, an owner’s disparate treatment argument failed because the owner made no convincing showing that the treatment was measurably unfair when compared to another owner’s.
Does one unenforced violation waive the rule for everyone?
No. Under Kapner v. Meadowlark Ranch Assn. (2004) 116 Cal.App.4th 1182, “one or a few waivers will not suffice,” and there must be enough waivers that the purpose of the general plan is undermined. In Kapner, the owner claimed that 35 of 54 landowners had encroachments. The court found no waiver, because after a survey the association wrote to every offending owner demanding removal or an encroachment agreement.
The outer limit is abandonment. In Bryant v. Whitney (1918) 178 Cal. 640, the California Supreme Court refused an injunction where there was no uniform observance of the restrictions and substantially all the landowners had acted in a way that indicated abandonment. A restriction that most of the community has ignored for years, with no response from the association, is at risk.
The statute of limitations does not create a waiver on its own. Code of Civil Procedure section 336(b) states that failing to sue within the period does not waive the right to act on any other violation of the restriction and does not, in itself, create an implication that the restriction is abandoned, obsolete, or otherwise unenforceable.
How have California courts ruled when HOA enforcement was challenged as uneven?
Associations won three of the five cases below, split one, and lost one. Ironwood and Ekstrom did not involve a selective enforcement argument and are included because they show what a court requires of a board.
| Case | What the owner argued | Result | What decided it |
|---|---|---|---|
| Liebler v. Point Loma Tennis Club (1995) 40 Cal.App.4th 1600 | The rule limiting tennis courts to residents was enforced only against one owner | Association won | The board had first written to every nonresident owner, all but one complied, and no evidence of selective enforcement was introduced |
| Pacific Hills Homeowners Assn. v. Prun (2008) 160 Cal.App.4th 1557 | Waiver and laches, pointing to a neighbor’s violation | Association won, at a price | The association showed it had addressed the neighbor’s violation and distinguished it on safety, but was ordered to pay two-thirds of the cost if the owners chose to relocate the gate, because of its delay |
| Kapner v. Meadowlark Ranch Assn. (2004) 116 Cal.App.4th 1182 | Waiver, claiming 35 of 54 owners encroached | Association won | The association had written to every offending owner demanding removal or an encroachment agreement |
| Ironwood Owners Assn. IX v. Solomon (1986) 178 Cal.App.3d 766 | Not a selective enforcement case; the association sued over palm trees planted without approval | Split: declaratory relief affirmed, injunction reversed | The record showed no board or committee decision and no findings |
| Ekstrom v. Marquesa at Monarch Beach Homeowners Assn. (2008) 168 Cal.App.4th 1111 | Owners sued because the board would not enforce a tree-trimming covenant against palm trees | Owners won | A board cannot exempt a category from a covenant that covers all trees, and it received no judicial deference for doing so |
Where an owner pointed to other violations in the community, the court looked at what the board had done about them and whether the board could prove it.
How long does a board have to enforce a violation?
Five years. Code of Civil Procedure section 336(b) sets a five-year limitations period for an action for violation of a restriction, running from the time the association discovered the violation or, through the exercise of reasonable diligence, should have discovered it.
Pacific Hills applied that period to unrecorded architectural guidelines as well as recorded CC&Rs. The association’s suit was timely because it was filed more than four but less than five years after the gate was built. The court also said it did not condone the delay, and the judgment made the association responsible for two-thirds of the relocation cost if the owners chose to move the gate.
Delay costs money even when the claim survives. A board that waits four years gives the owner a laches argument, a waiver argument, and a sympathetic set of facts about money spent in reliance on silence.
Does a board have to pursue every violation the same way?
No. A board has discretion over the means of enforcement, and courts defer to it. In Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, the Court of Appeal held that an association had discretion to select among means for remedying violations without resorting to expensive and time-consuming litigation, and that it was not required to sue.
Haley extended the judicial deference rule of Lamden v. La Jolla Shores Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249, a maintenance case that protects a board acting upon reasonable investigation, in good faith, and with regard for the best interests of the association and its members. Beehan v. Lido Isle Community Assn. (1977) 70 Cal.App.3d 858 applied the same idea to a board’s good faith decision not to sue over a setback.
The discretion covers how to enforce a restriction. It does not let a board decide the restriction no longer exists. Ekstrom marks the line: a letter, a hearing, a fine, a negotiated cure, or a lawsuit are all choices a board can defend, but a standing policy of not enforcing a clear covenant against one category of owners is not. Our guide to HOA board defense covers the deference rule in more depth.
What procedure must a board follow before it fines an owner?
Written notice at least 10 days before the board meeting, a chance to address the board, and a written decision within 14 days. Those steps are in Civil Code section 5855, and discipline imposed without them is not effective.
AB 130 took effect on June 30, 2025 and added, among other changes, two limits. Under section 5855, a board may not impose discipline if the member cures the violation before the meeting, or gives a financial commitment to cure where the cure takes longer. Under Civil Code section 5850, a monetary penalty is capped at the lesser of the schedule amount or $100 per violation, unless the board makes a written finding in an open meeting that the violation may result in an adverse health or safety impact on the common area or another member’s property.
Procedure matters here because Ironwood makes it part of the board’s case. A selective enforcement defense paired with a defective hearing notice is far stronger than either alone. Our guide to HOA fining authority in California walks through the hearing step by step.
How does a board restart enforcement of a rule it has let slide?
Announce it to everyone, set a date, and deal with the existing violations before pursuing a new one. That is what the board did in Liebler, where a letter to every affected owner came before any fine, and it is why the selective enforcement argument had no evidence behind it.
Take a 120-unit condominium association with a rule requiring architectural approval for patio enclosures. Nine owners built enclosures without approval between 2019 and 2023, and prior boards did nothing. In 2026 a tenth owner starts building, and the current board wants to stop it.
Nine of 120 units is 7.5 percent, which is far from the general abandonment in Bryant. The restriction is likely still enforceable, provided the board deals with the nine. Any enclosure the association discovered, or reasonably should have discovered, more than five years before filing is likely time-barred, and section 336(b) says that does not waive enforcement against the others.
The board’s sequence should run in four steps.
- Adopt a resolution in an open meeting stating that the association will enforce the approval requirement and from what date.
- Send written notice of that resolution to every owner, not only the nine.
- Resolve the nine existing enclosures on a documented basis: a retroactive approval where the enclosure meets the standards, a recorded agreement where it does not, and a written note of any claim the board believes is time-barred.
- Notice the tenth owner for a section 5855 hearing, with the resolution and the treatment of the nine in the file.
If the board wants to change the rule itself, Civil Code section 4360 requires general notice to the members at least 28 days before making the rule change. Our guide to the Davis-Stirling Act for HOA boards covers rulemaking.
What records defeat a selective enforcement claim?
An enforcement log that shows every reported violation of the rule, what the board did, and why. In our experience representing boards, the association that can hand over a log with dates and outcomes resolves the dispute at the hearing stage, and the association without one litigates.
Owners cannot build the comparison from a records request alone. Civil Code section 5215 allows an association to withhold records of disciplinary actions against members other than the member requesting the records, along with executive session minutes. Discovery in a lawsuit is broader, so a board should assume that everything it has written about comparable violations will eventually be read by the owner’s attorney.
The log should record the reason whenever two similar violations get different treatment. Safety was the distinction that worked in Pacific Hills. A prior written approval, the limitations period, and a cure before the hearing are others, and each one is usable only if it was recorded when the decision was made.
When does uneven enforcement become a fair housing problem?
When the difference in treatment tracks a protected characteristic. Government Code section 12955 prohibits housing discrimination, and the California Civil Rights Department lists homeowners associations among the housing providers that must comply.
This exposure is separate from the CC&R dispute and does not depend on the business judgment rule. A board that enforces a noise or occupancy rule against families with children and not against others has a discrimination claim to answer, with its own remedies. The enforcement log is the defense here too.
What does a selective enforcement fight cost the association?
The losing side pays both sides’ attorney fees. Civil Code section 5975 makes the covenants enforceable equitable servitudes unless unreasonable, and subdivision (c) provides that the prevailing party in an enforcement action shall be awarded reasonable attorney’s fees and costs.
The fee rule applies to both sides, so a dispute over a $100 fine can end in a fee award many times that size. An association that sues on a thin record and loses to a selective enforcement defense pays the owner’s fees. Before filing, Civil Code section 5930 requires the parties to endeavor to submit the dispute to alternative dispute resolution when the action seeks only declaratory, injunctive, or writ relief, alone or with damages within the small claims limit. The Judicial Council describes the options on its alternative dispute resolution page.
In our experience, the ADR stage is where a well-documented board ends these disputes. An owner’s attorney who sees the letter to all owners, the log, and the hearing record will weigh the fee exposure before going further.
Frequently asked questions about HOA selective enforcement
Can an owner sue the HOA for selective enforcement?
An owner can raise it as a defense to an enforcement action or plead it as part of a claim that the board acted arbitrarily. The published California decisions turn on procedure more than on the label. Owners have won where the board skipped its own procedures or exempted a category the covenant did not exempt.
What is selective enforcement as it applies to an HOA?
It is the claim that a board enforced a restriction against one owner while knowingly excusing the same violation by others without a reasoned basis. California courts test it under the Nahrstedt requirement that enforcement be in good faith and applied uniformly.
Can a board enforce a rule it ignored for years?
Yes, unless the community has abandoned the restriction. The board should give notice to all owners that enforcement is resuming and should address existing violations on a documented basis first. Each individual violation is also subject to the five-year limitations period.
Can a board grandfather existing violations?
A board can resolve an existing violation differently from a new one on case-specific grounds it records, such as a prior written approval or the limitations period. It cannot exempt a whole category from a covenant that does not allow the exemption, which is the lesson of Ekstrom.
Does a new board inherit the old board’s failure to enforce?
The association is the same legal entity, so prior inaction counts as evidence on waiver and laches. A new board can still reset enforcement with a resolution and notice to all owners, and the five-year period for each violation runs from discovery.
Is the board protected by the business judgment rule?
For choices among enforcement methods, yes, under Haley, which extended the Lamden deference rule. The protection depends on reasonable investigation and good faith, and it does not cover a refusal to apply a clear covenant.
Talk to a Los Angeles HOA attorney before the next violation notice goes out
Borna Houman Law advises association boards across Los Angeles County on enforcement policy, hearings, and CC&R litigation. Read more on our condominium and HOA law page and our HOA governance and disputes page.
Call (888) 42-BORNA to schedule a confidential consultation. Bring the violation notice, the governing documents, and whatever record exists of how the rule has been enforced before.
Written by Borna Houman, attorney at Borna Houman Law, California Bar No. 352339, 2530 Wilshire Blvd, Santa Monica, CA.
This article is general information about California common interest development law and is not legal advice. Reading it does not create an attorney-client relationship. Case outcomes depend on the governing documents and the enforcement record of each association. Speak with a lawyer about your community.
