People who purchase properties located within common interest communities governed by a homeowners association are bound to comply with restrictions contained in the governing documents for the homeowners association. A homeowner who violates those restrictions is subject to various methods of enforcement that are contained in applicable state laws and/or the associations governing documents, and the association has a duty to enforce those restrictions. Notwithstanding said duty, associations have some discretion that enables its board of directors to make decisions about the extent of action it wants to take to enforce a particular violation. Occasionally, an associations efforts to enforce a restrictive covenant against a particular owner are met with a defense waiver. The defense waiver is generally precipitated by a history of an associations board of directors failing or refusing to enforce a particular restriction.

When the associations board then seeks to enforce the restriction against one homeowner, that homeowner may defend the enforcement action by claiming that the association has waived the right to pursue the violation because of the history of similar violations that the association has tolerated and not taken any enforcement action on. The theory underlying the defense, which is also referred to as selective enforcement, is that by failing to take enforcement against other people who have committed similar violations, the owner who is now being pursued by the association has been misled to his or her prejudice by the associations lack of prior enforcement actions to believe that the particular restriction is no longer subject to enforcement.

To protect against the effects of a waiver, it is commonplace for the associations governing documents to contain a non-waiver clause that specifically states that an associations failure to enforce a particular provision on one or more prior occasions does not constitute a waiver of the right to enforce that provision in the future. Such a clause is designed to preserve the enforceability of restrictive covenants and is generally enforceable when it has been demonstrated that the basis of the waiver is a result of affirmative action on the part of the association as opposed to a mere failure to enforce the restrictive covenant. Even so, the association cannot be arbitrary and capricious in its decisions to enforce its restrictive covenants as the directors have an obligation to enforce the associations governing documents consistently and fairly in a manner that is believed to be for the good of the community. Inconsistency in the enforcement process could result in a waiver of the right to enforce a particular restriction. To protect against a defense waiver and to preserve the protections of a non-waiver clause, an associations board of directors should knowingly elect not to seek remedies against a particular violation, and properly document its reasons for the decision not to enforce in a particular situation.

The existence and the effects of a successful waiver defense demonstrate the importance of a homeowners associations board of directors properly addressing violations of their restrictive covenants. If an associations board elects not to seek remedies against a particular violation, it should document its reasons to be properly protected against possible further defenses to actions to enforce similar violations based on the defense of waiver.