Three Common Covenant Enforcement Defenses – Waiver, Estoppel, and Selective Enforcement

Associations frequently find themselves in a position of strength when they wish to enforce violations of their convents. Where the terms of a covenant are unambiguous, courts will enforce such restrictions. However, it is not uncommon for an owner who has violated the covenants to scramble for defenses to try to justify his or her violations and give the association pause in its resolve to pursue enforcement. While successful owner defenses are by far the exception and not the rule, three particular defenses—waiver, estoppel, and selective enforcement—are raised with such frequency that associations are wise to understand what each of these is and when it might apply.