Selective enforcement is the argument that an association can't enforce a rule against you while knowingly tolerating the identical violation elsewhere in the community. No South Dakota statute names the defense, but none is needed: restrictive covenants in South Dakota are enforced through the courts' equitable powers, and equity has always policed how a party enforces its rights, through doctrines like waiver (the association let the restriction lapse so broadly it can no longer enforce it), estoppel (owners reasonably relied on the association's non-enforcement), and the general principle that equitable relief goes to parties with clean hands. A board that cherry-picks enforcement targets is handing you the raw material for all three.
The argument lives or dies on documentation, and South Dakota gives incorporated-association members an unusually good discovery tool before any lawsuit exists: SDCL § 47-24-2's right to inspect all books and records for any proper purpose. The association's own violation logs, fine ledgers, and enforcement correspondence, inspected as a member, will show whether the rule you're accused of breaking has been enforced evenhandedly or aimed. Pair that with your own dated photographs of comparable, uncited conditions, identified by address or lot number, never by the names of the people living there, and you have the pattern evidence that makes a hearing, a demand letter, or ultimately a court take the defense seriously.
Waiver versus selective enforcement
Keep the two related arguments distinct in your notes, because they aim at different targets. Waiver says the restriction itself has lapsed: violations are so widespread and so long-tolerated that the association has abandoned the covenant and can't revive it against anyone. Selective enforcement is narrower: the covenant may live, but enforcing it against you while knowingly ignoring identical violations is inequitable. You don't have to choose upfront. Gather the enforcement records and the comparables, and let the pattern tell you which argument the facts support better.
The authority
The statutes behind this
Cited by name as authority, for your own reading. Informational only, not legal advice.
SDCL § 47-24-2
The member inspection right that reaches the association's own violation logs, fine ledgers, and enforcement files, the raw material of a selective-enforcement defense.
SDCL ch. 43-15A
The condominium chapter supplies no enforcement procedure, which means enforcement disputes run on covenant and equity principles where uneven enforcement is a recognized defense.
South Dakota covenant-enforcement doctrine (waiver, estoppel, arbitrary enforcement)
Restrictive covenants are enforced in equity, where a court may refuse enforcement that has been waived community-wide or applied inconsistently against a particular owner.
Step by step
How to document and raise selective enforcement in South Dakota
Build the record that supports a waiver or selective-enforcement defense to a South Dakota association's enforcement action.
- 01
Pin down the exact restriction
Identify the specific recorded covenant or validly adopted rule the association claims you violated. The comparison has to be rule-to-rule and condition-to-condition; equity rewards precision.
- 02
Photograph comparable violations
Document other properties with the same condition that haven't been cited, with dates and addresses or lot numbers. Never name or photograph the residents; the association's conduct is the subject, not your neighbors.
- 03
Inspect the enforcement records
If the association is incorporated, use SDCL § 47-24-2 to inspect violation logs, fine ledgers, and board minutes discussing enforcement. A written pattern of citing some owners and not others is the strongest evidence there is.
- 04
Raise the pattern in writing
Present the comparables and records to the board in a dated letter, framed as waiver and inconsistent enforcement, and ask for the citation to be withdrawn. Boards facing a documented pattern often retreat rather than test it.
- 05
Preserve everything for court
If the association escalates to a lawsuit or lien, your organized record, photos, ledgers, minutes, and correspondence, is the defense. Equity is fact-driven; the better-documented party usually wins the framing.
Straight answers
Common questions
Is selective enforcement a real defense in South Dakota?
Yes, as an equitable defense rather than a statute. South Dakota courts enforce covenants through equity, where waiver, estoppel, and arbitrary or discriminatory enforcement are recognized reasons to refuse enforcement against a particular owner. It's fact-driven, which makes documentation everything.
What evidence carries the argument?
Dated photographs of comparable uncited violations identified by address or lot number, the association's own violation and fine records obtained through SDCL § 47-24-2, and the timeline of your citation. A pattern, not a single example, is what persuades.
What's the difference between waiver and selective enforcement?
Waiver argues the covenant has been abandoned community-wide and can't be enforced against anyone; selective enforcement argues the covenant may survive but singling you out while ignoring identical violations is inequitable. Gather the facts first, then let the pattern pick the stronger frame.
Should I name the neighbors who weren't cited?
No. Identify comparable properties by address or lot number and keep the focus on the association's inconsistent conduct. The defense is about how the board enforces its rules, not about the people next door.