Selective enforcement is the argument that an association cannot enforce its rules à la carte. If the board cites you for a basketball hoop, a shed, or a fence while the same condition sits unaddressed across the street, Indiana courts, applying ordinary covenant and equity principles, can treat that inconsistency as waiver, estoppel, or abandonment of the restriction, or simply as grounds to deny the association the equitable enforcement it seeks. There is no statute to cite for the doctrine itself; the defense is built from facts, which makes your documentation the whole case.
Indiana's procedural statutes are unusually friendly to building it. The records right in Ind. Code § 32-25.5-3-3 reaches the association's financial records without a purpose test, which includes the fine ledger, and the two-year communications-retention rule reaches the board's own emails about enforcement decisions. The grievance-resolution chapter (ch. 32-25.5-5) then guarantees you a forum: before the association can take a covered enforcement claim to court, it must sit through the notice-and-meeting process, where your comparables, photographs, and the board's own records go on the table. Most selective-enforcement fights in Indiana are won or settled at that meeting, not in a courtroom.
Waiver vs. selective enforcement
Two related arguments usually travel together. Waiver or abandonment says the association tolerated violations so widely and so long that the restriction can no longer be enforced against anyone. Selective enforcement is narrower: the rule may still stand, but applying it to you while ignoring identical violations elsewhere is inequitable. You don't need to choose in advance. Assemble the record, present it at the grievance meeting, and let the breadth of the pattern decide which framing carries, or raise both.
The authority
The statutes behind this
Cited by name as authority, for your own reading. Informational only, not legal advice.
Ind. Code ch. 32-25.5-5
The mandatory grievance procedure: the forum where a selective-enforcement defense gets its first formal hearing, before either side can initiate a legal proceeding.
Ind. Code § 32-25.5-3-3
The records right, purpose-test-free, used to obtain fine ledgers, enforcement records, and two years of board communications about financial transactions, the paper that proves a pattern.
Indiana common-law selective-enforcement / waiver doctrine
Indiana courts may refuse to enforce a covenant applied inconsistently or effectively abandoned, through waiver, estoppel, and related equitable defenses.
Step by step
How to document and assert selective enforcement in Indiana
Build the evidentiary record that supports a selective-enforcement or waiver defense to an Indiana HOA enforcement action.
- 01
Identify the exact covenant
Pin down the specific recorded provision the association says you violated, and confirm any rule built on it was properly adopted. The comparison must be apples to apples: same rule, same conduct, different treatment.
- 02
Photograph comparable violations
Document other properties with the identical condition that were never cited. Date-stamp the photos and identify properties by address or lot number, never by the neighbor's name.
- 03
Pull the association's enforcement paper
Send a § 32-25.5-3-3 request for the fine ledger, violation log, and board communications about enforcement of the same rule within the two-year retention window. You don't have to explain why you're asking.
- 04
Serve a grievance notice and present the pattern
Put the comparables, photos, and the board's own records on the table at the mandatory ch. 32-25.5-5 meeting, and ask that the inconsistency be acknowledged in writing or in the minutes.
- 05
Preserve the record for court
If enforcement continues past the grievance process, your organized, dated file, and the board's conduct at the meeting, is the foundation of the waiver and selective-enforcement defenses a court will weigh.
Straight answers
Common questions
Is selective enforcement a real defense in Indiana?
It can be. Indiana courts applying covenant and equity principles can refuse enforcement where an association applied a restriction inconsistently or effectively abandoned it, through waiver, estoppel, and related doctrines. It is fact-driven, so the documented pattern is the case.
How do I get the association's enforcement history?
A written request under Ind. Code § 32-25.5-3-3, which requires no stated purpose, reaches the fine ledger and financial records, and the two-year retention rule reaches board communications about enforcement-related transactions. The first search hour is free and fees are capped.
Where do I first raise the defense?
At the mandatory grievance meeting under ch. 32-25.5-5. The association cannot take a covered enforcement claim to court without running that process, which guarantees your comparables a formal audience before litigation exists.
Should I name the neighbors who weren't cited?
No. Identify comparable properties by address or lot number and keep the focus on the association's conduct. The argument is about how the board applies its rules, and it works without putting any individual's name in the record.