Selective enforcement — citing you for the trailer, the fence, the short-term rental while identical conditions two doors down go unremarked — is an equitable defense in New Mexico as elsewhere: no statute names it, but courts weighing covenant enforcement consider waiver, estoppel, and the basic inequity of singling one owner out. What New Mexico adds is unusual access to the proof. Because § 47-16-17 obligates the association to keep written minutes of all meetings including every formal action taken, and § 47-16-5 obligates it to open those minutes — plus the financial records where fines are ledgered — within ten business days at $50 a day for stonewalling, the enforcement pattern isn't locked in the manager's drawer. It's in documents the statute already made yours.
The Act also gives you a formal venue to raise the pattern before any fine sticks. Under § 47-16-18, no fine or suspension may be imposed without written notice, an opportunity to dispute, and — on request — a hearing before the board on fourteen days' notice, with a majority vote required to impose. That hearing is where comparables belong: dated photographs of identical uncited conditions, the minutes showing the board discussed and dropped other owners' violations, the fine ledger showing who was charged and who wasn't. An objection raised there enters minutes you can inspect later, which converts your defense into the association's own record.
Waiver versus selective enforcement
Two related arguments usually travel together. Waiver or abandonment says the association let a restriction lapse so broadly — years of unaddressed violations community-wide — that it can no longer enforce it against anyone. Selective enforcement is narrower: the rule may still live, but enforcing it against you while knowingly tolerating identical violations elsewhere is inequitable. You don't have to pick in advance. Gather the record and let the pattern decide: a handful of ignored comparables supports the narrow argument; a community-wide blind eye supports the broad one.
The authority
The statutes behind this
Cited by name as authority, for your own reading. Informational only, not legal advice.
NMSA 1978, § 47-16-5
The discovery tool: minutes of all meetings and the financial records where fines are ledgered, produced within 10 business days on pain of the greater of actual damages or $50/day — how you obtain the association's own enforcement history.
NMSA 1978, § 47-16-18
The venue: no fine without notice, an opportunity to dispute, and a hearing on 14 days' notice — where comparables and inconsistency are raised on a record the board must keep.
New Mexico common-law waiver / estoppel doctrine
Courts weighing covenant enforcement consider equitable defenses — waiver, estoppel, abandonment — when an association has applied a restriction inconsistently or let it lapse; a fact-driven defense built from documentation.
Step by step
How to document and assert selective enforcement in New Mexico
Build the evidentiary record that supports a selective-enforcement or waiver defense to a New Mexico fine or citation.
- 01
Identify the exact rule
Pin down the specific recorded covenant or validly adopted rule cited against you. The comparison must be rule-specific — identical conduct, identical provision.
- 02
Photograph comparable violations
Document other properties with the same condition that weren't cited. Date-stamp the photos and identify properties by address or lot number, never by the neighbors' names.
- 03
Pull the enforcement record under § 47-16-5
Request the minutes of all meetings and the financial records showing fines assessed. Ten business days, ten cents a page, $50/day if they stall. Minutes showing the board saw and skipped comparable violations are your core exhibit.
- 04
Raise it at the § 47-16-18 hearing
Request the hearing in writing, present the comparables and the association's own records, and ask that your objection be reflected in the minutes. A fine imposed over a documented inconsistency record is far weaker in any later forum.
- 05
Preserve everything for escalation
If the fine stands, your organized record — photos, minutes, ledger, hearing objections — is the waiver and selective-enforcement case a court would weigh, and the same record supports challenging the fine before it hardens into a § 47-16-6 lien. Involve a licensed New Mexico attorney at that stage.
Straight answers
Common questions
Is selective enforcement a real defense in New Mexico?
It's an equitable, fact-driven defense — no statute names it, but courts weighing covenant enforcement consider waiver, estoppel, and inconsistent application. New Mexico's contribution is procedural: the records and hearing statutes let you build and lodge the proof before a fine ever sticks.
What records should I request?
Minutes of all meetings (the Act requires them to record every formal action) and the financial records where fines appear — both reachable under § 47-16-5 within ten business days, with the $50/day penalty behind the deadline. The board's own paper usually shows who was cited and who wasn't.
When do I raise the inconsistency?
At the § 47-16-18 hearing, before the fine is imposed — request it in writing within the notice window. Objections raised there enter the association's minutes, which you can inspect later. Waiting until the fine is a lien makes everything harder.
Should I name the neighbors who weren't fined?
No. Identify comparable properties by address or lot number and keep the focus where it belongs — on the association's uneven conduct, not on the people next door.