Legal Question in Real Estate Law in California

Re: Can I sue for selective enforcement?

I would argue bad faith. In every agreement there is a covenant of good faith and fair dealing. By virtue of the fact that the seller didn't enforce this provision with others, is, in my mind, good evidence of bad faith conduct against you. Surely, if there was some type of discrimination, then, that would only help your case. Mind you, your going to have to prove that your neighbors weren't treated as you were. That means they are going to have to testify, or, at the very least, provide declarations under the penalty of perjury. It sounds like small claims may be in order. You can contact the local courthouse for forms and information regarding small claims. Good luck and thanks for inquiring.

Re: Can I sue for selective enforcement?

I did a search of reported California cases containing both "selective enforcement" and "contract" and found no case that would suggest that "selective enforcement" is a defense to enforcement of a contract provision.

While it is true that implied waiver of a contract provision may be a defense to a later attempt to enforce that provision, I have never heard of waiver of an identical provision in someone else's contract to be a defense.

That doesn't mean it couldn't be argued successfully, however. I would say that if you had been sued for the $1,900, you might have had a small chance of winning, not on the ground that the provision was unenforceable per se, but that its enforcement against you was waived through failure to enforce it against others similarly situated.

Further, if there are facts that could lead a judge or jury to believe some kind of unlawful discrimination (for example, singling you out because of your race, ethnic background, sexual preference, religion, etc.) was taking place, your chances would be much better.

The concept of selective enforcement usually crops up in the criminal law context ("Gee, officer, why me? Everyone was speeding!"), and even there selective enforcement is usually OK unless there is unlawful discrimination or the law itself is inherently unfair.