Most owners assume that if the board let a neighbor's identical violation slide, it can't turn around and enforce the same rule against them. Maryland's Condominium Act cuts against that assumption directly. Section 11-113(d) says: "The failure of the council of unit owners to enforce a provision of this title, the declaration, or bylaws on any occasion is not a waiver of the right to enforce the provision on any other occasion." For condo owners, that means a blanket "they can't enforce it now" waiver argument is weaker in Maryland than in states without a clause like this one on the books.
Selective enforcement is a narrower, different argument, and it survives that non-waiver clause. The question isn't whether the council can still enforce the rule at all, § 11-113(d) says it can, it's whether this specific enforcement action against you was an arbitrary or inconsistent application of a rule that had to be validly adopted under § 11-111 in the first place. That's a due-process and reasonableness argument you raise at your § 11-113 hearing with comparables in hand, not a request that the board accept it has forfeited the rule entirely.
HOA owners may have more room, not less
The Homeowners Association Act doesn't include a provision like § 11-113(d). Title 11B is silent on whether non-enforcement on one occasion waives future enforcement, which means general Maryland common-law defenses, waiver and selective enforcement alike, are more fully in play for an HOA lot owner than they are for a condo owner facing that statutory non-waiver clause head-on. Either way, the case rises or falls on documentation: use § 11-116 (condo) or § 11B-112 (HOA) to request the association's own minutes and enforcement history, which is often the clearest evidence of a pattern.
The authority
The statutes behind this
Cited by name as authority, for your own reading. Informational only, not legal advice.
Md. Code Ann., Real Prop. § 11-113
Includes the condo non-waiver clause (§ 11-113(d)) and the hearing process where a selective-enforcement argument actually gets raised and decided.
Md. Code Ann., Real Prop. § 11-111
Requires a condo rule to be validly adopted, noticed, and voted on before it's enforceable — the framework inconsistent enforcement strains even where the non-waiver clause applies.
Md. Code Ann., Real Prop. § 11B-112
The HOA records right that lets you request minutes and enforcement history to document a pattern, since Title 11B has no non-waiver clause equivalent to § 11-113(d).
Step by step
How to document and raise selective enforcement in Maryland
Build the evidentiary record for a selective-enforcement, and for HOA owners a possible waiver, defense to a Maryland fine.
- 01
Identify the exact rule and confirm how it was adopted
Condo owners: confirm the rule went through § 11-111's notice-and-vote process. HOA owners: check when and how the rule was adopted under your declaration and bylaws.
- 02
Photograph and date comparable violations
Document other units or lots with the same condition that were never cited. Use addresses or unit and lot numbers, not the names of the owners living there.
- 03
Request the association's own enforcement records
Use § 11-116 (condo) or § 11B-112 (HOA) to request minutes and any records showing which violations were raised, and which were quietly dropped.
- 04
Raise it at your hearing, framed correctly
Condo owners: argue at your § 11-113 hearing that this specific enforcement was arbitrary or inconsistent, not that the council has broadly waived the rule, since § 11-113(d) forecloses that framing. HOA owners without an equivalent clause may argue waiver more directly.
- 05
Preserve everything if the dispute escalates
If the fine or denial stands, your documented pattern is the raw material for a selective-enforcement or waiver defense in court, or before a § 11B-104(c) commission if your county has one.
Straight answers
Common questions
Is selective enforcement a real defense in Maryland?
It can be. While § 11-113(d) prevents a condo owner from arguing the council has broadly waived a rule just by letting one past violation slide, singling you out for arbitrary or inconsistent enforcement of a validly adopted rule is a separate, narrower argument you can raise at your hearing.
If my condo let a violation slide before, doesn't that mean they can't enforce it now?
Not on its own. Section 11-113(d) specifically states that failing to enforce a rule on one occasion is not a waiver of the right to enforce it later. Your stronger argument is that this particular enforcement action against you is inconsistent or arbitrary, not that the rule has been abandoned entirely.
What evidence do I actually need?
Dated photographs of comparable, uncited violations, and the association's own minutes and enforcement history obtained through § 11-116 or § 11B-112. Patterns carry the argument, not a single example.
Is this different for HOA lot owners than condo owners?
Potentially, yes. Title 11B has no clause like § 11-113(d), so a general waiver argument, that the HOA let the restriction lapse so broadly it can no longer enforce it, may be more available to an HOA lot owner than to a condo owner facing that statutory non-waiver language directly.