Most states leave selective enforcement to judge-made law, an equitable defense courts recognize but that never appears in the statute itself. Kansas is different. K.S.A. § 58-4608(b) gives the board real discretion not to enforce a rule, it can decline if the legal position is weak, the covenant might not hold up, the violation isn't serious enough to matter, or acting just isn't in the association's best interest. But subsection (c) then says directly: a decision not to enforce in one situation doesn't stop the board from enforcing in another, 'but the board of directors may not be arbitrary or capricious in taking enforcement action.' If the board is citing you for a parked trailer, an unapproved fence, or a short-term rental while knowingly letting the identical thing slide two doors down, that inconsistency runs straight into this statutory line, not just a fairness argument you have to invent from scratch.
Layer on K.S.A. § 58-4604's duty of good faith in the performance or enforcement of 'every contract or duty' the act governs, and you have two separate textual hooks. Together they mean an association's enforcement choices aren't purely discretionary; they have to be defensible, not arbitrary, and exercised in good faith.
Building your own record, since the board can withhold its file on others
Be realistic about one limit. K.S.A. § 58-4616(c) lets the association withhold records concerning existing or potential enforcement proceedings and, separately, 'individual unit files other than those of the requesting owner.' That means you generally can't use a records request to get the association's enforcement file on your neighbor. Your comparable-violation evidence has to come mostly from your own documentation, dated photos and notes of the same violation going uncited elsewhere, not from the board's paperwork on someone else.
What you can use is K.S.A. § 58-4621, which lets any unit owner, not just the association, bring an action to enforce a right granted by the act, the declaration, or the bylaws, with the court able to award reasonable attorney's fees and costs. The statute also directs that remedies be 'liberally administered' to put the wronged party in as good a position as if the other side had fully performed. That's a real, usable civil-action right if a documented pattern of arbitrary enforcement doesn't get resolved at the board level.
The authority
The statutes behind this
Cited by name as authority, for your own reading. Informational only, not legal advice.
K.S.A. § 58-4608(b)-(c)
Gives the board discretion not to enforce, but states directly that it 'may not be arbitrary or capricious in taking enforcement action,' a textual selective-enforcement hook rare among state statutes.
K.S.A. § 58-4604
Imposes a duty of good faith on the performance or enforcement of every contract or duty under the act.
K.S.A. § 58-4616(c)
Lets the association withhold records of pending enforcement matters and other owners' individual unit files, why your own documentation, not a records request, has to carry the comparable-violation evidence.
K.S.A. § 58-4621
Lets any unit owner bring an action to enforce a right under the act, declaration, or bylaws, with attorney's fees available and remedies to be liberally administered.
Step by step
How to document and raise selective enforcement in Kansas
Build the record that supports an arbitrary-or-capricious enforcement argument under K.S.A. § 58-4608 in a Kansas association dispute.
- 01
Pin down the exact rule
Confirm the specific declaration or rule language the board says you violated, and where it was properly adopted. Selective enforcement is rule-specific, not a general fairness complaint.
- 02
Photograph comparable, uncited violations yourself
Date-stamp the same violation elsewhere in the community and note addresses or lot numbers, not neighbors' names. Don't count on a records request to hand you the board's enforcement file on someone else; § 58-4616(c) lets it withhold exactly that.
- 03
Ask the board to explain its decision in writing
Request, in writing, why the board is enforcing against you specifically and not the comparable cases you've documented. Section 58-4608(c) requires the enforcement not be arbitrary or capricious; make the board put its reasoning on paper.
- 04
Invoke the good-faith duty
Point to K.S.A. § 58-4604 alongside § 58-4608 when you raise the inconsistency, since both provisions apply to how the association performs and enforces its rules.
- 05
Consider a § 58-4621 action if it doesn't resolve
If the board won't budge, K.S.A. § 58-4621 lets you bring your own action to enforce your rights under the act, the declaration, or the bylaws, with attorney's fees on the table and a directive that remedies be liberally administered in your favor if you're right.
Straight answers
Common questions
Is selective enforcement a real defense to a Kansas HOA or condo charge?
It can be, and Kansas gives you more than the usual common-law argument. K.S.A. § 58-4608(c) says directly that the board 'may not be arbitrary or capricious in taking enforcement action,' a textual hook you can point to, not just an equitable doctrine borrowed from case law.
Can I get the association's file on my neighbor's violation?
Probably not through a records request. K.S.A. § 58-4616(c) lets the association withhold individual unit files belonging to owners other than you, along with records of pending enforcement matters. Build your own dated documentation of comparable violations instead.
Does the board have to enforce every rule against everyone equally?
Not exactly. Section 58-4608(b) gives the board real discretion to decline enforcement for specific reasons (a weak legal position, an unenforceable rule, a minor violation, or resource concerns), and declining in one case doesn't force it to decline in every case. What it can't do is be arbitrary or capricious in the choices it makes.
Can I sue my Kansas association myself instead of just fighting a charge?
Yes. K.S.A. § 58-4621 lets any unit owner bring an action to enforce a right granted by the act, the declaration, or the bylaws, and the court can award reasonable attorney's fees and costs to the aggrieved party.
What evidence actually supports a selective-enforcement argument in Kansas?
Dated photos of the same violation going uncited elsewhere, your own written record of when you raised the inconsistency with the board, and the board's own explanation (or lack of one) for why it's enforcing against you specifically. A documented pattern carries more weight than a single comparison.