What the immunity does and does not cover

KRS 411.200 is the provision most Kentucky volunteer directors have heard of and few have read. Its protection is real, and it is conditional.

It reaches directors who serve without compensation. A director receiving a stipend, a fee waiver, or an assessment credit is in a different position from one serving for nothing, and that distinction is the first thing a plaintiff's lawyer will probe. Boards that quietly abate the president's assessment should understand what they may be trading away.

It does not cover conduct outside the director's role, and it does not answer the association's own liability — the entity remains a defendant even where the individuals fall out of the case. And it sits alongside KRS 273.215, the nonprofit standard of conduct for directors, which the court examined and found no violation of.

Practically, the statute is not the only layer. Directors' and officers' cover, an indemnification provision in the bylaws, and the statute are three separate layers, and the first two are what actually pay for a defence. The court in Strause had an indemnification bylaw in front of it as well.

The non-waiver clause: check whether you have one

This decision turned in part on a clause many Kentucky declarations contain and many older ones do not — a provision stating that failure to enforce any restriction is not a waiver of the right to enforce it later.

The candour of the court's footnote is worth taking seriously. There is no binding published Kentucky decision holding that a non-waiver clause defeats a waiver defence. Strause is unpublished and treats the clause as “additional support,” not as dispositive on its own.

Two consequences follow. If your declaration has a non-waiver clause, it is worth something and worth citing. If it does not, do not assume you are lost — Kentucky law does not require one. In August 2025 the Court of Appeals enforced covenants in a community with no non-waiver clause and where no entity was enforcing the outbuilding restrictions at all, because non-enforcement defeats a covenant only where it has produced a fundamental change in the neighbourhood's character.

The two-board-members problem

The fact that two of the eighteen non-conforming fences belonged to board members did not change the outcome here. It should still worry a board reading this.

The reason it did not matter is that the case was decided on the approval requirement and the non-waiver clause, not on a challenge to the fairness of the process. A differently framed case — one alleging that the board approved its own members' fences and refused an identical application from someone else — is the arbitrary-enforcement claim the Court of Appeals has expressly left open elsewhere. In April 2026 it said waiver could be argued where an association arbitrarily enforced a standard after adoption in a way that changed the subdivision's fundamental character.

The protective practice is unglamorous and effective: minute the decision, record the reason, and where a director's own property is in issue, have the director abstain and record the abstention.

Where this leaves a Kentucky board

• You may refuse what you have not banned — if your document requires approval. The approval clause is the restriction.
• But the discretion narrows as your written standards get more specific. In May 2026 the Court of Appeals ordered plans approved where they plainly conformed to specific and unambiguous covenants, holding that a general consent clause cannot be read to make the specifics superfluous. Bradford Grove's documents were general; that is why the board kept its discretion.
• Widespread non-compliance is not fatal, but it is a live defence. The test in Kentucky is whether non-enforcement has changed the fundamental character of the neighbourhood — not whether other violations exist.
• If you want a categorical rule, amend. The court said so directly. Amendment routes run through KRS 381.791 for planned communities and KRS 381.9155 for condominiums, and through the declaration's own procedure.

What to watch next

The through-line of Kentucky's 2025 and 2026 covenant decisions is that almost none of them is published. Strause, and the decisions that qualify it, are all marked NOT TO BE PUBLISHED — non-binding under the Rules of Appellate Procedure and citable only in limited circumstances.

That means a Kentucky board can read a consistent line of reasoning across half a dozen recent opinions and still have no binding authority to hand a circuit judge. Until the Supreme Court of Kentucky or a published panel decision addresses the non-waiver clause directly, that gap is the practical risk in relying on any of it.