Under 25 Del. C. § 81-302(f), the executive board gets real discretion not to pursue a violation. It can decide, in good faith and without a conflict of interest, that the association's legal position doesn't justify acting, that the rule being enforced is or might be inconsistent with current law, that a technical violation isn't serious enough to justify the expense of pursuing it, or that enforcement just isn't in the association's best interest given the hardship or expense involved. But the statute draws a hard line immediately after granting that discretion: choosing not to enforce a rule once doesn't stop the board from enforcing it later against someone else, "except the executive board may not be arbitrary or capricious in taking enforcement action." That is about as direct a statutory selective-enforcement hook as you'll find in any state's common-interest-community code.
The same subsection preserves your other angle, too: whether the association's pattern of letting a rule slide, its "course of performance", amounts to a waiver or modification of that rule "is not affected by this chapter." In plain terms, ordinary Delaware waiver and equitable defenses still apply on top of the arbitrary-or-capricious statute; the newer law didn't replace them. And § 81-113 backs both arguments up directly: every duty DUCIOA creates, including how the board decides when and against whom to enforce, carries "an obligation of good faith in its performance." Cite both together. Arbitrary, inconsistent enforcement isn't just bad practice under Delaware law; it's arguably a breach of the statute itself.
Building the record, and the one door § 81-318 doesn't open
Use § 81-318(b) to request the association's general minutes and financial records: minutes that show whether other violations were raised and quietly dropped, financial records that show whose fines actually got assessed. But be realistic about § 81-318(c)(8): the board can lawfully withhold "individual unit owner files other than those of the requesting owner," so don't count on compelling a specific neighbor's enforcement file. Your strongest evidence will usually be your own dated photographs of comparable, uncited violations elsewhere in the community, addresses or unit numbers only, never your neighbors' names, paired with whatever broader pattern the association's own general minutes and financials do reveal.
The authority
The statutes behind this
Cited by name as authority, for your own reading. Informational only, not legal advice.
25 Del. C. § 81-302
States directly that the executive board "may not be arbitrary or capricious in taking enforcement action," while preserving ordinary waiver defenses built on the association's own course of performance.
25 Del. C. § 81-113
Imposes a good-faith obligation on every duty DUCIOA creates, reinforcing that inconsistent, arbitrary enforcement runs against the statute itself.
25 Del. C. § 81-318
Lets you request the association's general minutes and financial records to document an enforcement pattern, though individual owner files besides your own can lawfully be withheld.
Step by step
How to document and assert selective enforcement in Delaware
Build the evidentiary record that supports an arbitrary-or-capricious or waiver defense to a Delaware HOA or condo fine.
- 01
Identify the exact rule and confirm it was properly adopted
Pin down the specific declaration provision or rule at issue, and confirm it was noticed and adopted under § 81-320(a). Selective enforcement is rule-specific, not a general complaint.
- 02
Photograph and date comparable violations
Document other units or lots with the same condition that were never cited. Use addresses or unit numbers, not the names of the owners living there.
- 03
Request the association's general records
Use § 81-318(b) to request minutes and financial records that might show a broader enforcement pattern, understanding that individual owner files besides your own can be withheld under § 81-318(c)(8).
- 04
Raise the arbitrary-or-capricious standard in writing
Cite § 81-302(f) directly, before or at any hearing on your fine, and lay out the comparable violations you've documented.
- 05
Preserve everything for court
If the fine or lien proceeds anyway, your documented pattern is exactly what an arbitrary-or-capricious or waiver defense needs if the association ever sues to collect or forecloses the lien it's attached to.
Straight answers
Common questions
Does Delaware law actually ban selective enforcement?
Yes, explicitly, for DUCIOA associations. Section 81-302(f) says the executive board "may not be arbitrary or capricious in taking enforcement action," one of the more direct statutory hooks against uneven enforcement found in any state's common-interest-community code.
What's the difference between that and a waiver defense?
They're related but distinct, and both survive side by side. Waiver argues the association let a restriction lapse so broadly it can't enforce it at all; the arbitrary-or-capricious standard argues the board's specific decision to enforce against you, and not others, was unreasoning. Section 81-302(f) preserves both.
Can I get my neighbor's violation file to prove the pattern?
Generally no. Section 81-318(c)(8) lets the board withhold individual unit owner files besides your own. Lean on your own dated documentation of comparable, uncited violations instead.
Does this apply to my older Unit Property Act condo?
Not by a dedicated statute. The Unit Property Act has no enforcement-discretion or arbitrary-or-capricious provision, largely because it doesn't give the council a fining power at all; an uneven-enforcement argument there would have to be raised as a general Delaware equitable defense, like waiver, in response to a § 2210 lawsuit.