Many communities are bound by declaration provisions that limit the units'/lots' to residential uses only and prohibit business or commercial uses. Sometimes residents conduct some sort of limited business activity in their homes, but the activity is of the sort that is typically limited to their use of their telephones and computers. Other residents may conduct babysitting services, accounting services, provide piano lessons or may conduct mail order businesses that have no customers visiting the home, but who may have frequent UPS deliveries and pickups. Assuming that the language of the restriction simply prohibits all business and commercial activities, a question often arises concerning whether it is possible to crack down on the more objectionable activities while allowing the more innocuous business activities to continue.

Though it is not practical or even possible for an association to police residents' use of their telephones or computers for possible business-related uses, it is unlikely that the Board can safely ignore those it believes are less objectionable business uses while only pursuing enforcement against those that the Board considers more objectionable. Once a Board becomes aware that violations of the governing documents are occurring (ie: the matter has been brought to the Board's attention at a meeting), the Board must take action to abate the violation or may risk losing the ability to enforce the restriction.

"Selective enforcement" is a defense to an association's effort to enforce its governing documents that is often raised by residents who are trying to defeat an association's effort to enforce its governing documents. Even if one resident's use of his property for business activity is strictly limited to telephone or computer use, if a resident who is conducting more obvious business activities or more objectionable commercial behavior can establish that the Association is enforcing certain restrictions against some, but not others, the resident may be able to successfully persuade a court that the Association is arbitrarily singling them out for enforcement while others are allowed to violate the same restriction. Courts will often not balance the relative severity of one violation and another if both violate the same provision of the Declaration. If a court concludes that the business use prohibition of the declaration is being selectively enforced, it may decline to enforce it against an owner who is violating the declaration. Unless the declaration allows certain kinds of business uses, but prohibits others, a board cannot look the other way on some while pursuing enforcement against others.

The most effective way of assuring that objectionable business activities can be prevented while allowing less objectionable and "invisible" business activities is to amend the declaration to specifically recognize and authorize certain business activities that do not create any adverse effect upon others in the community so that the Association can focus on those activities that do adversely impact the community.

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