Selective enforcement is the argument that a board can't cherry-pick who has to follow a rule: cite you for a shed, a fence, or a short-term rental while letting the same thing slide three units over, and the enforcement action itself becomes suspect. Most states get there through equitable defenses courts imported over time. Vermont wrote it into the statute directly. Section 3-102(g) lets the executive board decide not to pursue enforcement in specific circumstances — the association's legal position doesn't justify it, the violation isn't material enough to be worth the resources, or pursuing it isn't in the association's best interest. But § 3-102(h) draws the hard line right next to it: a decision not to enforce under one set of circumstances doesn't stop the board from enforcing under another, 'but the executive board may not be arbitrary or capricious in taking enforcement action.' That's real, on-point Vermont law, not a doctrine you have to import from case law.
Section 4-117 backs this up with teeth: any unit owner, not just the association, may bring an action to enforce a right granted by the Act, the declaration, or the bylaws, and the court may award reasonable attorney's fees and costs to whoever wins. If the board is treating your violation differently than an identical one down the street, you don't have to wait for the association to come after you first, and you don't have to wait for it to sue someone else either.
Building the record — and a records gap to know about
Be realistic about what you can pull through a records request. Section 3-118(c)(8) specifically lets the association withhold 'individual unit files other than those of the requesting owner,' so a records request generally won't hand you the board's enforcement file on a specific neighbor. Your comparable-violation evidence has to come mostly from your own dated photographs and observations, documented by address or unit number rather than by name. There is one real exception worth using: § 3-118(a)(10) requires the association to keep records of committee actions approving or denying design and architectural requests, and those aren't a specific owner's private file the way an enforcement record might be, so they're a legitimate, obtainable comparison point if your dispute runs through the ARC.
The authority
The statutes behind this
Cited by name as authority, for your own reading. Informational only, not legal advice.
27A V.S.A. § 3-102(h)
States directly that the executive board may not be arbitrary or capricious in taking enforcement action, the core statutory hook for a selective-enforcement argument.
27A V.S.A. § 3-102(g)
Defines the board's lawful discretion not to enforce in specific circumstances, the baseline against which an arbitrary decision is measured.
27A V.S.A. § 4-117
Lets any unit owner, not just the association, sue to enforce a right under the Act, the declaration, or the bylaws, with attorney's fees available.
27A V.S.A. § 3-118(c)
Lets the association withhold other owners' individual unit files from a records request, the practical wrinkle in gathering comparables.
Step by step
How to document and raise selective enforcement in Vermont
Build the evidentiary record that supports an arbitrary-and-capricious argument under § 3-102(h) and, if needed, your own § 4-117 action.
- 01
Pin down the exact rule and confirm it was validly adopted
Identify the specific declaration provision or rule at issue, and, if your community is subject to § 3-120, confirm the rule went through the required notice-and-comment process. Selective enforcement is rule-specific.
- 02
Document comparable violations yourself
Photograph and date the same violation elsewhere in the community, noting addresses or unit numbers rather than names. Don't count on a records request to hand you the association's file on a specific neighbor, since § 3-118(c)(8) lets it withhold that.
- 03
Request the ARC's own decision records if relevant
If the dispute involves an approved-versus-denied project, ask for the § 3-118(a)(10) records of committee decisions on design and architectural requests, which aren't shielded the way another owner's individual file is.
- 04
Raise the arbitrary-and-capricious standard directly
At your § 3-102(a)(11) hearing, name the comparable violations and cite § 3-102(h) by section number, asking the board to explain the distinction between your case and the ones it didn't pursue.
- 05
Consider your own action if the board won't explain it
Section 4-117 lets you sue to enforce the Act, the declaration, or the bylaws on your own, without waiting for the association to act first, and lets the court award attorney's fees to the prevailing party.
Straight answers
Common questions
Is selective enforcement actually illegal under Vermont law?
It's closer to that than in most states. Section 3-102(h) states directly that the executive board 'may not be arbitrary or capricious in taking enforcement action' — a real statutory line, not just an equitable doctrine courts have layered on over time.
Can I get the board's enforcement file on my neighbor?
Probably not through a records request. Section 3-118(c)(8) lets the association withhold individual unit files other than your own. Build your own dated photo record of comparable violations instead, and use the § 3-118(a)(10) ARC decision records if your dispute involves an approved-versus-denied project.
What's the difference between the board choosing not to enforce and selective enforcement?
Section 3-102(g) lets the board decide not to pursue enforcement for specific, legitimate reasons — a weak legal position, an immaterial violation, a rule that looks legally shaky. Section 3-102(h) is what turns that discretion into a problem: the board can't be arbitrary or capricious about which violations it lets go and which it doesn't.
Can I sue the board myself over uneven enforcement?
Yes. Section 4-117 lets any unit owner bring an action to enforce a right granted by the Act, the declaration, or the bylaws, without needing the association to act first, and the court may award reasonable attorney's fees and costs to the prevailing party.