Selective enforcement — the board cites your shed, your trailer, your renter while ignoring the identical situation across the street — is an equitable defense, and North Dakota's statutes are unusually friendly to it in structure even though they never name it. In a condominium, § 47-04.1-04 makes the recorded restrictions enforceable only as 'equitable servitudes where reasonable,' importing equity's own doctrines — waiver, estoppel, unclean hands — into the very standard that gives the restriction force. And § 47-04.1-08 channels enforcement into a court action for damages or an injunction, which means a North Dakota association that wants to make a violation stick ultimately has to persuade a judge sitting with equitable powers — exactly the forum where a documented pattern of uneven enforcement matters. In a subdivision HOA the same logic runs through contract law: covenants are enforced under ordinary equitable principles, and a restriction the association has long tolerated community-wide, or applies only to you, meets the same defenses.
The evidence trail is better than you'd expect for a state with this little association law. The county recorder holds the whole enforcement skeleton for a condo: the declaration and its recorded restrictions, every valid bylaws amendment, and — under § 47-04.1-11 — every recorded notice of assessment, with its add-on penalty charges, and every release. If penalties were swept into recorded liens against some units but never against others with the same condition, that pattern is public paper. If your association is an incorporated nonprofit, § 10-33-80 opens the accounting records and six years of board minutes to member inspection — the minutes where enforcement decisions, waivers, and exceptions were voted — with damages, costs, and attorney's fees available if inspection is wrongfully denied.
Build the pattern, then use every forum
Because North Dakota supplies no fine-hearing procedure, your forums are the ones the documents and the general law give you: written objection to the board, the membership itself, and ultimately the courtroom the statutes route enforcement through. Put the comparables and the records pattern in front of the board in writing before any penalty is recorded into a lien. If the board is the problem, remember the ch. 10-33 machinery from the elections guide — 50 members or 10 percent can force a meeting, directors are removable with or without cause, and § 10-33-81 gives that same bloc an equitable-relief action with attorney fees for violations of the chapter. Selective enforcement is rarely one owner's fight; in a state whose law runs on member action, making it the membership's issue is both the political and the legal answer.
The authority
The statutes behind this
Cited by name as authority, for your own reading. Informational only, not legal advice.
N.D.C.C. § 47-04.1-04
Restrictions bind only as 'equitable servitudes where reasonable' — equity's defenses, including waiver and estoppel from uneven enforcement, are built into the enforcement standard itself.
N.D.C.C. § 47-04.1-08
Enforcement of covenants and rules runs through a court action for damages or injunctive relief — a judge with equitable powers, not a board-run penalty process, has the final word.
N.D.C.C. § 47-04.1-11
Recorded notices of assessment and their penalty add-ons are public at the county recorder — a checkable, unit-by-unit history of who was actually charged and who wasn't.
N.D.C.C. § 10-33-80
For incorporated associations: member inspection of accounting records and six years of board minutes — where enforcement votes and exceptions live — backed by a damages-and-attorney-fees remedy for denial.
Step by step
How to document and raise selective enforcement in North Dakota
Build the evidentiary record that supports a selective-enforcement defense to a North Dakota association penalty or enforcement action.
- 01
Fix the rule and its paper trail
Confirm the restriction cited against you actually appears in the recorded declaration or a written, properly adopted rule. In a condo, an enforcement theory resting on an unrecorded bylaws change fails § 47-04.1-07 before you reach fairness.
- 02
Photograph comparables, dated, by lot or unit
Document identical uncited conditions on other properties with date-stamped photos identified by address, lot, or unit number — never by the names of the people living there.
- 03
Pull the recorder's enforcement history
Search the county recorder for notices of assessment and releases across the project (§ 47-04.1-11). Penalties recorded against some units and never against others with the same condition is a public, board-proof pattern.
- 04
Inspect the minutes if incorporated
Use § 10-33-80 to inspect six years of board minutes and the accounting records for enforcement votes, waivers, and fine entries. Wrongful denial of that inspection is itself actionable with attorney fees.
- 05
Present it in writing, then organize the members
Deliver the pattern to the board framed against the 'where reasonable' standard, before any penalty is recorded into a lien — and if the board won't move, use the member tools: a demanded meeting, a removal vote, or the § 10-33-81 equitable action with a North Dakota attorney.
Straight answers
Common questions
Is selective enforcement a real defense in North Dakota?
As an equitable defense, yes. The condo chapter enforces restrictions only as 'equitable servitudes where reasonable,' and all covenant enforcement here ends up in front of a judge with equitable powers — where documented uneven enforcement supports waiver and estoppel arguments.
What's the difference between waiver and selective enforcement?
Waiver argues the association tolerated a restriction's violation so broadly it can no longer enforce it at all; selective enforcement is narrower — the rule may live, but singling you out while ignoring identical violations is inequitable. Gather the facts first; the pattern tells you which argument is stronger.
What evidence do I need?
A pattern: dated photos of comparable uncited violations (by lot or unit number), the county recorder's assessment-notice history across units, and — in an incorporated association — the board minutes and fine ledger a § 10-33-80 inspection reaches.
Should I name the neighbors who weren't cited?
No. Identify properties by address, lot, or unit number and keep the focus where the defense lives — on the association's own inconsistent conduct, not on the people next door.