Texas courts recognize that an HOA can lose the right to enforce a restriction it has applied inconsistently or allowed to lapse. The related doctrines of waiver and abandonment can bar an association from enforcing a covenant against one owner when it has tolerated widespread identical violations, and selective, discriminatory enforcement against a single owner can likewise defeat the action. Like most states, this is a fact-driven, equitable analysis — your documentation is the case.
Texas owners have an extra tool the doctrine pairs well with: the recorded-rule requirement. Because the rules used to enforce against you generally must be recorded dedicatory instruments, you can attack a citation on two fronts at once — that the rule wasn't properly recorded, and that even if it was, the association enforced it selectively. Combining the two is often more powerful than either alone.
Waiver, abandonment, and selective enforcement
Three overlapping arguments come up in Texas. 'Waiver' and 'abandonment' say the association let a restriction lapse so broadly across the community that it can no longer enforce it. 'Selective enforcement' is narrower — the rule may survive, but singling you out while ignoring comparable violations is inequitable. Gather the facts first; the pattern of community-wide non-enforcement versus targeted citation will tell you which argument is strongest.
The statutes behind this
Cited by name as authority, for your own reading — informational only, not legal advice.
Tex. Prop. Code § 209.006 & § 209.007
The notice-and-hearing process — your first forum to put inconsistent enforcement on the record before the board.
Tex. Prop. Code § 202.006
The recorded-rule requirement, often paired with selective enforcement to attack a citation on two fronts.
Texas waiver / abandonment / selective-enforcement doctrine
Texas courts may bar enforcement of a covenant the association applied inconsistently or allowed to lapse community-wide.
How to assert selective enforcement in Texas
Build the record and combine waiver, selective-enforcement, and recorded-rule arguments against a Texas HOA citation.
Pin down the rule and confirm it's recorded
Identify the exact covenant cited and confirm whether it's a recorded dedicatory instrument. If not, you have a recorded-rule defense before you even reach selective enforcement.
Photograph uncited comparables
Document other properties with the same violation that weren't cited. Date the photos and note addresses or lot numbers — not owner names.
Request the enforcement records
Use your Chapter 209 records rights to obtain the association's violation and fine logs. Community-wide non-enforcement supports waiver; targeted citation supports selective enforcement.
Raise it at the § 209.007 hearing
Bring the comparables and records to your board hearing and ask that the inconsistency and the recorded-rule question be reflected in the minutes.
Preserve the record
Keep everything organized and dated. If the dispute escalates to court, the waiver/selective-enforcement analysis turns on exactly this evidence.
Common questions
Is selective enforcement a defense in Texas?
It can be. Texas courts recognize waiver, abandonment, and selective-enforcement defenses: an association that enforces a covenant inconsistently or lets it lapse community-wide may be barred from enforcing it against a particular owner. It's a fact-driven, equitable analysis.
How does the recorded-rule requirement help my case?
Because rules generally must be recorded dedicatory instruments (Tex. Prop. Code § 202.006), you can attack a citation on two fronts: that the rule wasn't properly recorded, and that even if it was, the HOA enforced it selectively.
What's the difference between waiver and selective enforcement?
Waiver and abandonment argue the association let a restriction lapse so broadly it can't enforce it at all; selective enforcement argues the rule may survive but singling you out while ignoring identical violations is inequitable. They often travel together.
Where do I first raise it?
At your Chapter 209 hearing before the board (Tex. Prop. Code § 209.007). Bring dated comparables and the association's enforcement logs, and ask that the inconsistency be recorded in the minutes.