Selective enforcement rests on a simple idea: a board can't pick and choose who has to follow the rules. Section 339-j ties any enforcement action — a lawsuit for damages or an injunction, or a surety-bond demand — to a unit owner's failure to comply with the by-laws and with rules, regulations, resolutions, and decisions adopted under them. The predicate is a validly adopted rule, understood to apply community-wide. A board that lets identical conduct slide elsewhere in the building while suing or fining you over the same thing undercuts its own claim that the rule is actually being enforced as adopted.
New York courts, like courts in most states, have long recognized equitable defenses to covenant and by-law enforcement, including waiver and selective enforcement, when a board or its managing agent applies a restriction unevenly. Your leverage here is almost entirely about documentation, and the § 339-w records right is how you get at the board's own enforcement and payment history to prove a pattern.
Waiver vs. selective enforcement
Two related arguments often travel together. Waiver says the board let a restriction lapse so broadly — widespread, unaddressed violations across the building — that it can no longer enforce it at all. Selective enforcement is narrower: the rule may still be alive, but singling you out while ignoring comparable violations elsewhere is inequitable. Gather the facts — how many other violations, how long they've been tolerated — and let the pattern decide which argument is stronger.
The authority
The statutes behind this
Cited by name as authority, for your own reading. Informational only, not legal advice.
N.Y. Real Prop. Law § 339-j
Ties any enforcement action to a unit owner's violation of validly adopted by-laws and rules, the framework uneven enforcement collides with.
N.Y. Real Prop. Law § 339-w
Records right that lets you obtain the board's own receipts and expenditures history, useful for tracing whether comparable violations were ever billed or pursued.
N.Y. Real Prop. Law § 339-v
Sets out how rules and by-laws must be adopted, so you can confirm the rule being enforced against you was actually validly adopted community-wide.
Step by step
How to document and raise selective enforcement in a New York condo
Build the evidentiary record that supports a selective-enforcement or waiver defense to a New York condo enforcement action.
- 01
Identify the exact rule and confirm it was validly adopted
Pin down the specific by-law or rule provision under § 339-v that the board says you violated. Selective enforcement is rule-specific.
- 02
Photograph comparable violations
Document other units with the same condition, uncited, date-stamped, and identified by unit number rather than owner name.
- 03
Request the board's enforcement and payment history
Use a § 339-w records request to ask for records showing whether comparable violations were ever billed, fined, or pursued.
- 04
Raise the pattern in writing before the board sues or fines you
Send a dated letter laying out the comparable, uncited violations before the board escalates under § 339-j.
- 05
Preserve the record for court
If the board proceeds anyway, your documented pattern supports a selective-enforcement or waiver defense. Keep everything dated and unit-specific, not aimed at named neighbors.
Straight answers
Common questions
Is selective enforcement a real defense in a New York condo dispute?
Courts have long recognized equitable defenses like waiver and selective enforcement when a board applies a restriction unevenly, and § 339-j's own framework, tying enforcement to validly adopted rules, cuts against arbitrary or inconsistent action.
What's the difference between waiver and selective enforcement?
Waiver argues the board let a rule lapse so broadly across the building that it can't enforce it at all anymore. Selective enforcement argues the rule is still alive but singling you out while tolerating identical conduct elsewhere is inequitable.
What evidence actually matters?
Dated photos of comparable, uncited violations, and the board's own enforcement and billing history obtained through a § 339-w records request. A pattern beats a single example.
Do I need to name the other owners who weren't cited?
No. Identify units or locations, not people. The point is the board's pattern of conduct, not your neighbors.
Can the board's surety-bond demand under § 339-j still apply if enforcement has been uneven?
An uneven enforcement record is exactly what you'd raise to contest that demand. If the board never treated the rule as binding on comparable violations elsewhere, its claim that you're a flagrant or repeated violator is weaker.