Selective enforcement is the legal doctrine that prevents a property owners’ association from enforcing a deed restriction against one homeowner while ignoring the same conduct by others. This page walks through what the doctrine actually requires, the Texas Supreme Court decisions that define it, the elements of a §202.004(a) claim, and what evidence you should be collecting if you think your association is treating you differently.
01 · Definition
A property owners’ association has the power to enforce its deed restrictions. That power, however, is not unconditional. Under Texas law, an association cannot exercise its enforcement authority arbitrarily, capriciously, or in a discriminatory manner. The doctrine that gives this principle its teeth is called selective enforcement, and it has been part of Texas restrictive-covenant law since well before the Legislature codified it in §202.004(a) of the Property Code.
In ordinary terms, selective enforcement is what happens when the association cites your house for a paint color that eleven other houses on your street also have, or when the architectural committee denies your fence application but approved three identical fences last year, or when the board pursues you for a shed in the side yard while ignoring an entire neighborhood of unauthorized sheds. The legal doctrine attaches consequences to those patterns. The consequences are not automatic, and the burden is on the homeowner, but the doctrine is real, codified, and the subject of recent Texas Supreme Court attention.
A rule that the association enforces against you but not against your neighbors is not a rule. It is a tool, and the law is willing to call it that.
Selective enforcement can serve as an affirmative defense if the association sues you, as a counterclaim under §202.004(a) and (c), or as the basis for an independent declaratory action seeking a judgment that the restriction is unenforceable as applied. The procedural posture matters. The substantive proof requirements are the same.
02 · Statutory Framework
The statutory anchor for selective-enforcement claims in Texas is §202.004(a) of the Property Code. The provision reads as follows:
An exercise of discretionary authority by a property owners’ association or other representative designated by an owner of real property concerning a restrictive covenant is presumed reasonable unless the court determines by a preponderance of the evidence that the exercise of discretionary authority was arbitrary, capricious, or discriminatory.
Tex. Prop. Code §202.004(a)
The statute does two things at once. It establishes a presumption in favor of the association’s enforcement decision, which means the homeowner bears the burden of proof. It also defines the standard the homeowner must meet to overcome the presumption. The standard has three independent prongs: arbitrary, capricious, or discriminatory. The homeowner must prove only one.
Arbitrary means lacking a rational basis. An enforcement action is arbitrary when there is no principled reason connecting the rule, the alleged violation, and the action taken against the homeowner. An association that cannot articulate why it cited this owner and not others has an arbitrariness problem.
Capricious means inconsistent or whimsical. Capriciousness shows up when the association’s enforcement position changes from one homeowner to the next, from one board to the next, or from one season to the next, without explanation or rational basis. Sudden enforcement of a long-ignored restriction against a single owner is the classic capriciousness fact pattern.
Discriminatory in this context means treating similarly situated homeowners differently. It does not require proof of discrimination on a protected class basis, although the federal and Texas Fair Housing Acts provide separate protections where that is involved. For §202.004(a) purposes, it is enough to show that other homeowners with the same conduct were not cited, fined, or sued.
The presumption of reasonableness is rebuttable. The statute says it is overcome by “a preponderance of the evidence,” which is the lowest civil burden of proof. The homeowner does not need to prove arbitrariness beyond a reasonable doubt or even by clear and convincing evidence. More likely than not is enough.
03 · The Elements
The statute does not break the claim into formal elements, but Texas case law and practice have identified four things the homeowner must prove to overcome the presumption of reasonableness:
ELEMENT 01
A restrictive covenant exists
The deed restriction the association is attempting to enforce must actually appear in a recorded dedicatory instrument that applies to the homeowner’s property.
ELEMENT 02
The covenant is being enforced against the homeowner
The association has cited the homeowner, fined the homeowner, sued the homeowner, or threatened enforcement action.
ELEMENT 03
Similarly situated owners are not being enforced against
Other homeowners in the same subdivision have the same condition or have engaged in the same conduct, and the association has not cited, fined, or sued them.
ELEMENT 04
The association knows or should know
The association has actual or constructive knowledge of the comparator violations. This is often where the case is won or lost; documenting evidence sent to the board in writing converts constructive knowledge to actual knowledge.
Element four is the part most homeowners under-emphasize and most attorneys focus on. The reason is that the date the association is put on actual notice of the comparators is the date that ambiguity about the association’s motive collapses. A board that continues to enforce a restriction against one homeowner after receiving documented evidence that ten other properties have the same violation is doing something different from a board that simply has not noticed the comparators yet. The first is selective enforcement. The second is administrative oversight. The difference is provable in writing.
The related doctrine of waiver. Selective enforcement and waiver are different doctrines but related. Waiver applies when the association’s failure to enforce a restriction has been so extensive over time that a court will conclude the restriction has been abandoned. A waived covenant cannot be enforced against anyone. Selective enforcement applies when the association is enforcing inconsistently. A selectively enforced covenant may still be valid against compliant homeowners but unenforceable as applied to the targeted owner. Many cases involve both arguments in the alternative.
04 · Doctrinal History
The selective-enforcement doctrine in Texas grew from common-law contract principles, evolved through decades of Texas appellate decisions, and was codified in the modern form of §202.004(a) in 1987. The arc looks like this:
EARLY 20TH CENTURY
Common-law origins
Texas courts treated deed restrictions as contracts and applied general contract principles, including the doctrine that a party seeking equitable enforcement must come with clean hands. Inconsistent enforcement was an equitable defense well before any statutory framework existed.
1985
Hidden Valley Civic Club v. Brown
The Fourteenth Court of Appeals (Houston) addressed selective-enforcement principles in the deed-restriction context, helping shape the doctrinal contours that would later be codified. 702 S.W.2d 665.
1987
Section 202.004(a) enacted
The Texas Legislature codified the principle that an association’s discretionary enforcement authority is presumed reasonable but rebuttable on a showing of arbitrariness, capriciousness, or discrimination. The statute appeared alongside §202.003(a)’s liberal-construction rule.
1998
Malmgren v. Inverness Forest Residents Civic Club
The First Court of Appeals (Houston) addressed selective enforcement in a deed-restriction case, contributing to the Houston-area appellate authority on the doctrine. 981 S.W.2d 875.
1998
Pilarcik v. Emmons (Texas Supreme Court)
The Texas Supreme Court held that restrictive covenants are construed under general rules of contract construction. While Pilarcik is a construction case rather than a selective-enforcement case, it remains foundational to the field because every selective-enforcement claim begins with a question about what the covenant actually says. 966 S.W.2d 474.
2010
Uptegraph v. Sandalwood Civic Club
The First Court of Appeals (Houston) held that civil damages under §202.004(c), the companion provision authorizing $200 per day per violation, are not limited to compensation for actual harm. The decision is significant for the punitive character of §202.004(c) damages. 312 S.W.3d 918.
2015
KBG Investments v. Greenspoint POA
The Fourteenth Court of Appeals (Houston) held that to recover civil damages under §202.004(c), an association must plead and prove actual damages in more than a nominal amount, citing Civil Practice and Remedies Code §41.004(a). The decision creates a tension with Uptegraph that remains unresolved by the Texas Supreme Court. 478 S.W.3d 111.
2021
Li Li v. Pemberton Park Community Association
The Texas Supreme Court issued a per curiam opinion reversing summary judgment for an association where a pro se homeowner had argued selective enforcement without explicit reference to §202.004(a). The Court held that the substantive argument preserved the issue. The case is the leading current authority on §202.004(a) selective-enforcement claims in Texas. No. 20-0571.
05 · The Leading Authority
In October 2021, the Texas Supreme Court issued a per curiam opinion in Li Li v. Pemberton Park Community Association, No. 20-0571. The case is the leading current authority on selective enforcement under §202.004(a), and any homeowner pursuing a selective-enforcement claim, or any defense lawyer pursuing one as an affirmative defense, should understand its facts and reasoning.
Li Li owned a home in the Pemberton Park subdivision in Houston. The Pemberton Park Community Association sued her for alleged violations of the subdivision’s restrictive covenants. Li represented herself for most of the proceedings, eventually retaining counsel for portions of the appeal. In her response to the association’s motion for summary judgment, she argued that the association was selectively enforcing the covenants against her while ignoring similar or worse violations by other homeowners. She did not, however, cite §202.004(a) by section number or use the precise statutory phrasing of “arbitrary, capricious, or discriminatory.”
The trial court granted summary judgment for the association. The Fourteenth Court of Appeals affirmed, holding that Li had failed to preserve her selective-enforcement argument because she had not raised it with sufficient specificity in her summary-judgment response. Under the court of appeals’ reasoning, summary judgment could not be reversed on a theory the plaintiff had not adequately presented at the trial court level.
The Texas Supreme Court reversed in a per curiam opinion. The Court held that Li’s substantive argument that the association was selectively enforcing the covenants was sufficient to preserve a §202.004(a) issue, even without express citation to the statute. The Court reasoned that procedural rules should not function as rigid barriers, especially in cases involving pro se litigants, and that pleadings should be liberally construed in favor of preserving substantive rights. The Court remanded for further proceedings.
Texas Supreme Court · Per Curiam · Selective Enforcement
Li Li v. Pemberton Park Community Association
No. 20-0571 (Tex. Oct. 1, 2021)
A homeowner sued by her HOA argued in her summary-judgment response that the association was selectively enforcing the restrictive covenants against her. She did not expressly cite §202.004(a) or use the statute’s “arbitrary, capricious, or discriminatory” language. The trial court granted summary judgment for the association and the Fourteenth Court of Appeals affirmed on the ground that the issue was not preserved. The Texas Supreme Court reversed, holding that the substantive argument was sufficient to preserve the §202.004(a) claim and that procedural rules should not be applied to defeat substantive rights, especially in pro se cases.
Practical takeaway
Li Li stands for two propositions that matter on the ground. First, §202.004(a) selective-enforcement claims are alive and well in Texas, and the Texas Supreme Court is willing to reverse adverse decisions to preserve them. Second, the substance of the argument matters more than the form, which means homeowners can articulate the doctrine in plain language and still preserve the claim. The opinion does not lower the substantive proof requirements at trial; the homeowner still has to prove arbitrariness, capriciousness, or discrimination by a preponderance.
The Court did not reach the merits of Li’s selective-enforcement claim. The remand was procedural. Whether Pemberton Park’s enforcement was actually arbitrary, capricious, or discriminatory was a question for the trial court on remand. The decision is therefore a procedural-preservation case more than a substantive-doctrine case, but its existence at the Texas Supreme Court level signals that the doctrine remains viable and that pro se framing will not by itself defeat a §202.004(a) claim.
06 · Damages and Recovery
Section 202.004(c) provides for civil damages in deed-restriction cases. The provision reads:
A court may assess civil damages for the violation of a restrictive covenant in an amount not to exceed $200 for each day of the violation.
Tex. Prop. Code §202.004(c)
The statute is symmetric in the sense that either the association or the homeowner can be on the receiving end of a §202.004(c) damages award, depending on who prevails. In a selective-enforcement counterclaim, the homeowner seeks $200 per day per violation against the association from a date the homeowner can prove the discriminatory enforcement began.
The First Court of Appeals (Houston) held in Uptegraph v. Sandalwood Civic Club that civil damages under §202.004(c) are not limited to compensation for actual harm. Under Uptegraph, the $200-per-day amount has a punitive character and can be recovered without proof of specific monetary damage. 312 S.W.3d 918, 937.
Five years later, the Fourteenth Court of Appeals (Houston) held in KBG Investments, LLC v. Greenspoint Property Owners’ Association that to recover civil damages under §202.004(c), the party seeking damages must plead and prove actual damages in more than a nominal amount. The court relied on Texas Civil Practice and Remedies Code §41.004(a), which requires actual damages to support exemplary damages. 478 S.W.3d 111.
Both decisions are from Houston-area courts of appeals, and the tension between them has not been definitively resolved by the Texas Supreme Court. In practice, attorneys representing homeowners on selective-enforcement claims plead actual damages in addition to §202.004(c) statutory damages whenever possible, both to satisfy KBG Investments if the case ends up before the Fourteenth Court of Appeals and to maximize the damages model regardless. Actual damages in selective-enforcement cases typically include the costs of defending the underlying enforcement action, the diminution-in-value harm caused by inconsistent enforcement, and any out-of-pocket expense incurred responding to the association’s actions.
Fee-shifting under §5.006. Section 5.006 of the Property Code authorizes fee-shifting to the prevailing party in an action to enforce a restrictive covenant. The provision can apply to both sides. In selective-enforcement litigation, §5.006 fee-shifting is a major consideration in settlement posture, particularly when combined with the §209.008 limits on the association’s fee recovery.
07 · Building the Record
Selective-enforcement cases are won on documentary evidence. The litigation rarely turns on credibility; it turns on whether the homeowner can show, in writing, that the association is enforcing inconsistently and that the association knew it. The list below is the evidence inventory for a §202.004(a) claim, in the order it typically gets collected.
The order matters. Photographs and a written address list come first because they preserve the visual evidence at a specific point in time. ARC files and meeting minutes come next because they require a §209.005 records demand, which takes time to produce. The written submission to the board and any continued enforcement after that submission are the elements that turn a defensible record into an offensive case.
08 · Posture
Selective enforcement can come into a case in three distinct postures. The procedural mechanics differ in each, but the substantive proof is the same.
If the association sues the homeowner, selective enforcement appears in the homeowner’s answer as an affirmative defense under Texas Rule of Civil Procedure 94. The defense must be pleaded; it does not raise itself. If properly pleaded, it shifts the trial focus from “did the homeowner violate the restriction” to “is the association entitled to enforce the restriction against this homeowner under §202.004(a).” Selective enforcement as a pure affirmative defense, without a counterclaim, does not put damages on the table.
The homeowner can file a counterclaim under §202.004(a) and (c) in the same answer that pleads the affirmative defense. The counterclaim seeks declaratory relief that the association’s enforcement is arbitrary, capricious, or discriminatory, statutory damages under §202.004(c) at $200 per day, actual damages, and attorney’s fees under §5.006. Filing the counterclaim creates the leverage that the affirmative defense alone does not.
If the association has not yet sued and has not yet engaged in conduct that would warrant a temporary injunction, the homeowner can file an independent declaratory-judgment action under the Texas Civil Practice and Remedies Code §37.001 et seq., seeking a declaration that the association’s enforcement is unenforceable under §202.004(a). The declaratory posture is most useful when the homeowner wants to clear the field of an ongoing threat without waiting to be sued.
In all three postures, the work product on the selective-enforcement claim is largely the same: the documented comparators, the §209.005 records evidence, the written submission to the board, and the proof of continued enforcement after submission. The procedural choice is about timing and leverage, not about substantive proof.
Selective-enforcement cases are won on the documentary record. I review what you have, tell you whether it adds up to a §202.004(a) claim, and walk you through the posture options. There is no obligation, and the consultation does not cost anything.
Educational use only. This page is provided by Silachi Law Firm, PLLC for general educational purposes about selective-enforcement doctrine under Texas Property Code §202.004 and related provisions. Reading this page does not create an attorney-client relationship. The application of §202.004(a) to any particular situation depends on the specific facts, the language of the deed restrictions in the homeowner’s subdivision, the documentary evidence available, and the procedural history of the matter. Case law cited on this page is current as of the date of publication; the law can change. Before acting on any of the information here, please speak with a Texas attorney about your specific situation.
About the firm. Silachi Law Firm, PLLC is a Texas litigation firm based in Iowa Colony. The firm represents homeowners in deed-restriction disputes, foreclosure defense, selective-enforcement claims, and related matters under Chapters 202 and 209 of the Texas Property Code. Tex. Bar No. 24118480. 832-456-4371.