Ocean Beach and Yacht Club, a homeowners association in a beach community, is comprised of approximately 490 homes. Revised rules and regulations of the association allow owners of existing two-story homes to rebuild or remodel as long as they do not exceed the minimum height requirements set by governmental codes. The issue on appeal is whether the association engaged in selective enforcement in allowing certain homeowners to add an additional three feet in the height of their house, and denying the Plaintiffs similar permission.

The Court opines that the fact that other entities have obtained approval of similar licenses or permits in similar circumstances does not by itself support a finding of selective enforcement. "The mere fact that a law has not been fully enforced against others does not give a defendant the right to violate it." The party asserting the selective enforcement has a heavy burden of proof.

Two elements must be established in order to succeed on a claim of selective enforcement: 1) a discriminatory effect and 2) a motivating discriminatory purpose. Thus, in order to prove a selective enforcement claim, a homeowner must show that the association engaged in discriminatory conduct. This recent decision increases the burden on homeowners from claiming selective enforcement against homeowners associations.

If you have any questions regarding Community Association Law, call Mark & Galusha, attorneys who specialize in condominium law. Contact us at the "contact us" page, or by calling 908-626-1001 or 973-440-2311.