Selective enforcement is one of the most powerful owner defenses and one of the least understood. The idea: an association can't pick and choose who has to follow a rule. If the board fines you for a parked RV, a fence, or a short-term rental while knowingly tolerating the same conduct from other owners, that inconsistency undermines the enforcement against you.
Colorado gives this argument structure most states lack. CCIOA requires a written covenant-enforcement policy under C.R.S. § 38-33.3-209.5, and § 38-33.3-123 governs enforcement and the available remedies. An association that has a written policy but applies it only to some owners is enforcing inconsistently with its own stated process, which strengthens a selective-enforcement challenge. Your case rises or falls on documentation.
Waiver vs. selective enforcement
Two related arguments often travel together. 'Waiver' says the association let a restriction lapse so broadly — lots of unaddressed violations community-wide — that it can no longer enforce it at all. 'Selective enforcement' is narrower: the rule may still be alive, but singling you out while ignoring comparable violations is inequitable and inconsistent with the association's own enforcement policy. Gather the facts and let the pattern decide which argument is stronger.
The authority
The statutes behind this
Cited by name as authority, for your own reading. Informational only, not legal advice.
C.R.S. § 38-33.3-209.5
Requires a written covenant-enforcement policy, which inconsistent enforcement directly contradicts.
C.R.S. § 38-33.3-123
Governs enforcement of covenants and remedies, the framework uneven enforcement violates.
C.R.S. § 38-33.3-317
Records access that lets you obtain the association's enforcement history to prove a pattern.
Step by step
How to document and assert selective enforcement in Colorado
Build the evidentiary record that supports a selective-enforcement or waiver defense to a Colorado HOA fine.
- 01
Get the written enforcement policy
Request the covenant-enforcement policy required by § 38-33.3-209.5. Selective enforcement is strongest when you can show the board departed from its own written process.
- 02
Identify the exact rule
Pin down the specific covenant or rule the association says you violated. Selective enforcement is rule-specific; you're comparing apples to apples.
- 03
Photograph comparable violations
Document other properties with the same violation that haven't been cited. Date-stamp the photos and note addresses or lot numbers, not owner names.
- 04
Pull the enforcement records
Use a records request (see the records guide) under § 38-33.3-317 to ask for the association's violation and enforcement history. A pattern of citing only some owners is your strongest evidence.
- 05
Raise it and preserve it
Present the policy, comparables, and records at your hearing and through the dispute-resolution process (§ 38-33.3-209.5), and keep everything dated for a possible court challenge.
Straight answers
Common questions
Is selective enforcement a defense in Colorado?
It can be. CCIOA requires a written covenant-enforcement policy (§ 38-33.3-209.5) and governs enforcement remedies (§ 38-33.3-123), so an association that applies its rules unevenly is acting inconsistently with its own process, which supports the defense.
What's the difference between waiver and selective enforcement?
Waiver argues the association let a restriction lapse so broadly it can't enforce it at all; selective enforcement argues the rule may still be alive but singling you out while ignoring identical violations is inequitable. They often travel together.
What evidence do I need?
The written enforcement policy (§ 38-33.3-209.5), dated photos of comparable uncited violations, the association's enforcement history (via a § 38-33.3-317 records request), and the timeline of your own notice. Patterns carry the argument.
Should I name the neighbors who weren't fined?
Document the properties and violations, but you generally don't need to publicly name individuals; addresses or lot numbers establish the comparison. Keep the focus on the association's conduct, not your neighbors.