Selective enforcement is the argument that an association can't cherry-pick who has to follow a rule, cite you for a fence, a parked trailer, or a short-term rental while ignoring the identical thing three units down, and the enforcement action itself becomes suspect. West Virginia doesn't have a section titled "selective enforcement," but W. Va. Code § 36B-3-102(a)(11) supplies the hook. It only authorizes the association to levy "reasonable" fines, after notice and a hearing, for violations of the declaration and rules. An association that enforces a rule against you while knowingly letting it slide elsewhere is straining that "reasonable" qualifier itself, and the hearing the statute already guarantees is your forum to put that inconsistency on the record.
For a legacy Chapter 36A condo, § 36A-3-5 frames its judicial remedy as available "in a proper case" to an aggrieved unit owner, language that leaves room to argue that inconsistent, cherry-picked enforcement undercuts whether the association's own claim against you is, in fact, a proper case. None of this rewrites the underlying rule you allegedly broke. It's a defense to enforcement, and like anywhere else, it rises or falls entirely on documentation.
Use your records right to build the pattern
This is where W. Va. Code § 36B-3-118's broad "all financial and other records" right, or § 36A-3-13's business-hours examination right for a legacy condo, becomes useful well beyond its original purpose. Minutes can show whether other violations were raised and quietly dropped, and financial records can show whether fines only ever landed on certain units. Pair that with your own dated, direct documentation of the comparable violations themselves, since the association's paper trail alone rarely tells the whole story.
The authority
The statutes behind this
Cited by name as authority, for your own reading. Informational only, not legal advice.
W. Va. Code § 36B-3-102(a)(11)
Limits fines to "reasonable" ones imposed after notice and a hearing, a framework that inconsistent, cherry-picked enforcement strains.
W. Va. Code § 36B-3-118
The records right that lets you obtain the association's minutes and financial records to document a pattern of uneven enforcement.
W. Va. Code § 36A-3-5
The legacy act's judicial remedy, available to an aggrieved unit owner "in a proper case," language that bears on whether uneven enforcement undercuts the association's own claim.
Step by step
How to document and raise selective enforcement in West Virginia
Build the evidentiary record that supports a selective-enforcement argument against a West Virginia HOA or condo fine.
- 01
Identify the exact rule and its source
Pin down the specific covenant, bylaw, or rule the association says you violated, and confirm it traces back to something actually recorded or adopted, not an unwritten practice.
- 02
Photograph and date comparable violations
Document other units or lots with the same condition that were never cited. Use addresses or lot/unit numbers rather than the names of the owners living there.
- 03
Request the association's own records
Use a records request under § 36B-3-118 (or § 36A-3-13 for a legacy condo) to ask for minutes and financial records that might show a pattern of citations raised and dropped, or fines landing only on certain units.
- 04
Raise the pattern at your hearing
Present your comparables and any records you obtained at the notice-and-hearing session § 36B-3-102(a)(11) already guarantees, and ask that the inconsistency be reflected in the minutes.
- 05
Preserve everything for court
If the fine stands anyway, your documented pattern is the raw material for a selective-enforcement argument if the association ever sues to collect it or attaches it to a lien under § 36B-3-116.
Straight answers
Common questions
Is selective enforcement a real defense in West Virginia?
There's no stand-alone statute naming it, but § 36B-3-102(a)(11)'s limit to "reasonable" fines imposed only after notice and a hearing gives an inconsistent-enforcement argument real statutory footing, since arbitrary, cherry-picked enforcement strains that reasonableness requirement directly.
What's the difference between waiver and selective enforcement?
Waiver argues the association let a restriction lapse so broadly across the community 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 identical violations elsewhere is inequitable. They often travel together.
What evidence do I actually need?
Dated photographs of comparable, uncited violations, and, where available, the association's own minutes or financial records obtained under § 36B-3-118 or § 36A-3-13 showing a pattern of inconsistent citations or fines. A pattern carries the argument, not a single example.
Should I name the neighbors who weren't cited?
No. Document the properties by address or lot/unit number, not the individuals living there. Keep the focus on the association's own inconsistent conduct, not on your neighbors.