Selective enforcement is the argument that an association cannot enforce a rule against you that it knowingly lets slide for others. Tennessee courts have long treated restrictive covenants as creatures of equity: they are strictly construed, and doctrines like waiver, abandonment, and estoppel can bar enforcement where the association's own conduct shows the restriction was applied inconsistently or effectively given up. If the board fines you for a parked trailer, a fence, or a rental while the same condition sits uncited two doors down, that inconsistency is not just unfair; it is the raw material of a defense.
There is no section number for the doctrine itself, so your case is built from records and photographs. That is where Tennessee's statutes come back in. A condominium's fine hearing under Tenn. Code Ann. § 66-27-402(a)(11) is a formal venue to present comparables before the fine is levied. The condo records duty (§ 66-27-417) and, for subdivision HOAs, the nonprofit inspection right (§ 48-66-102, which no bylaw can take away) are how you obtain the association's own violation logs, fine ledgers, and minutes, the documents that show who was cited, who wasn't, and when the board knew.
Waiver vs. selective enforcement
Two arguments usually travel together, and Tennessee recognizes both. Waiver or abandonment says the association allowed violations so widely and so long that the restriction can no longer be enforced against anyone; the covenant has lapsed as a practical matter. Selective enforcement is narrower: the rule may survive, but enforcing it against you while ignoring comparable violations is inequitable. Don't pick a lane early. Gather the record, the photos, the logs, the timeline of the board's knowledge, and let the breadth of the pattern determine which framing is stronger, or raise both.
The authority
The statutes behind this
Cited by name as authority, for your own reading. Informational only, not legal advice.
Tenn. Code Ann. § 66-27-402(a)(11)
The condo fine hearing, the first formal venue where inconsistent enforcement can be raised on the record before a fine is levied.
Tenn. Code Ann. § 48-66-102
The nonprofit member inspection right used to obtain an HOA's violation logs, fine ledgers, and minutes; the statute says it cannot be abolished or limited by charter or bylaws.
Tennessee common-law selective-enforcement / waiver doctrine
Tennessee courts construe covenants strictly and may bar enforcement, through waiver, abandonment, or estoppel, where the association has applied a restriction inconsistently or let it lapse.
Step by step
How to document and assert selective enforcement in Tennessee
Build the evidentiary record that supports a selective-enforcement or waiver defense to a Tennessee association fine or enforcement action.
- 01
Identify the exact covenant
Pin down the specific recorded provision the association says you violated. The comparison must be rule-specific: the same restriction, the same kind of violation, different treatment.
- 02
Photograph comparable violations
Document other properties with the identical condition that were never cited. Date-stamp everything and identify properties by address or lot number, never by the neighbor's name.
- 03
Pull the association's own records
Use § 66-27-417 (condo) or a § 48-66-102 demand (nonprofit HOA) to obtain violation logs, fine ledgers, and board minutes. Records showing the board knew about comparable violations and did nothing are the core of the defense.
- 04
Raise it at the hearing, on the record
Present the comparables at the fine hearing (condo) or in a written response invoking the covenants' own procedure (HOA), and ask that the inconsistency be reflected in the minutes.
- 05
Preserve the record for court
If enforcement continues, your organized, dated file, photos, logs, minutes, and your contemporaneous objections, is what a Tennessee court will weigh when the waiver and selective-enforcement defenses are raised. Keep it intact.
Straight answers
Common questions
Is selective enforcement actually a defense in Tennessee?
It can be. Tennessee treats covenant enforcement as an equitable matter: courts construe restrictions strictly and can bar enforcement through waiver, abandonment, or estoppel where the association applied a rule inconsistently or let it lapse community-wide.
What's the difference between waiver and selective enforcement?
Waiver or abandonment argues the restriction lapsed for everyone through broad non-enforcement. Selective enforcement argues the rule may live, but singling you out while ignoring identical violations is inequitable. They rest on the same record and are often raised together.
How do I get the association's enforcement history?
Condo owners examine records under § 66-27-417. HOA members use the nonprofit inspection right in § 48-66-102, five business days' written demand, a stated proper purpose, and a right no bylaw can take away. Violation logs, fine ledgers, and minutes are the targets.
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 conduct. The defense is about how the board applies its rules, not about any individual neighbor.