One-Time Selective Timber Harvest Is Not “Commercial Activity” Under Residential Restrictive Covenants in New Hampshire

Case: Kathryn Wolf v. Patrick Brown (No. 2024-0068)

Court: Supreme Court of New Hampshire

Date: July 1, 2025

Disposition: Vacated and remanded (resolved by order under Sup. Ct. R. 20(3))

Introduction

This case clarifies what “commercial activity” means in the context of residential restrictive covenants in New Hampshire. The dispute arose between neighbors over a selective timber harvest on land subject to covenants that prohibit “commercial, industrial or manufacturing activity of any kind or character” and “agricultural activity for profit,” while separately directing that no lot be “stripped of trees” and that lots be “maintained in a proper and orderly fashion.”

Plaintiff Kathryn Wolf sought to enjoin defendant Patrick Brown’s planned timber cut, claiming it violated the covenants’ ban on commercial activity. The timber cut had been noticed to the Town of Dublin under RSA 79:10, involved 64 of the defendant’s 78 acres, and was projected to yield $80,311 (with approximately $45,000 ultimately paid before an ex parte injunction halted the harvest at roughly 60% completion of the marked trees). The defendant described the cut as a one-time, selective harvest aimed at forest health and preparation for homebuilding, not an ongoing logging operation.

The Superior Court initially granted a preliminary injunction, later awarded summary judgment to the plaintiff on the covenant-violation question, and after a bench trial issued a permanent injunction, while denying the plaintiff’s request for attorney’s fees. On cross-appeal, the New Hampshire Supreme Court vacated the summary judgment and the permanent injunction, holding that—on the undisputed record viewed favorably to the defendant—the isolated, selective timber harvest did not constitute prohibited “commercial activity” under the covenants.

Summary of the Opinion

The Supreme Court held that the restrictive covenant’s prohibition on “commercial activity” unambiguously targets the operation of commercial businesses for profit on the land, not isolated exchanges of money for goods. The Court emphasized:

The covenants’ exception allowing certain professions to operate in a single-family residence implies the prohibition is aimed at businesses operating on the land, apart from that narrow residential exception.
Reading the covenants together, the separate “no lot shall be stripped of trees” and “maintained in a proper and orderly fashion” provisions support the permissibility of selective forestry practices undertaken for property maintenance and forest health.
Given the record showing a one-time, selective harvest for forest health and site preparation (not an ongoing logging business), the activity was not “commercial activity” within the meaning of the covenants.

The Court therefore vacated the grant of summary judgment to the plaintiff and the permanent injunction that flowed from it, and remanded. Because of this disposition, the Court did not reach the plaintiff’s appeal from the denial of attorney’s fees.

Analysis

Precedents and Authorities Cited

Chartier v. Apple Therapy of Londonderry, 175 N.H. 603 (2023) — The Court reiterated the summary judgment standard and the obligation to view the evidence, and all reasonable inferences, in the light most favorable to the nonmoving party. That lens mattered here: the defendant’s sworn assertions (one-time cut, forest health, preparation for home construction) were credited for purposes of deciding whether the activity fell within the covenant’s ban.
Lynch v. Town of Pelham, 167 N.H. 14 (2014) — The Court framed deed interpretation principles: intended meaning at the time of drafting, assessed from the text and surrounding circumstances; de novo review of the trial court’s interpretation; no resort to extrinsic evidence where the language is clear and unambiguous.
Chase v. Joslin Management Corp., 128 N.H. 336 (1986) — The Court noted that restrictive covenant cases are highly fact-sensitive and must be decided on their own facts—a reminder that the outcome here was closely tied to the specific covenant language and the selective, one-time nature of the harvest.
Motion Motors v. Berwick, 150 N.H. 771 (2004) — The Court endorsed reading all provisions in a deed together as a whole. This holistic approach was central to harmonizing the “commercial activity” ban with the “no stripping of trees” and property maintenance provisions.
RSA 79:10, I (Supp. 2024) — Cited for the procedural context that the defendant filed a notice of intent to cut; not a decisional authority on covenant interpretation, but relevant to the setting and characterization of the timber harvest.

Legal Reasoning

The Court’s reasoning proceeds in three steps: the standard of review, the covenant’s plain meaning, and harmonization with other covenant provisions.

Standard of Review. Summary judgment is reviewed de novo, with facts viewed in the light most favorable to the nonmovant. Deed interpretation is likewise reviewed de novo. Because the covenant’s language was deemed clear, the Court drew its meaning from the text without extrinsic evidence.
Plain Meaning of “Commercial Activity”. The Court read the prohibition on “commercial activity of any kind or character” as “generally prohibit[ing] operating commercial businesses for profit on the land.” It contrasted that with an “isolated exchange of money for goods,” which the Court said the covenant does not prohibit. The Court relied on the clause expressly permitting certain professionals (e.g., doctor, lawyer, realtor, antique shop owner) to conduct a business within a single-family residence. That exception implies that “commercial activity” refers to business operations, and that the prohibition targets commercial businesses operating on the land outside the enumerated residential exception—not incidental, one-off transactions that happen to involve payment.
Reading the Covenants as a Whole. The Court read the “commercial activity” prohibition alongside the separate covenant aimed at preserving aesthetics: no lot shall be “stripped of trees,” and every lot shall be “maintained in a proper and orderly fashion.” This pairing strongly suggests that selective forestry undertaken for maintenance and forest health (e.g., removing overmature, diseased, or low-quality timber) is contemplated—and not barred—so long as it does not amount to stripping the lot. The Court underscored that it would be anomalous to permit property maintenance necessary to preserve beauty but prohibit the same work as “commercial activity.” On the record presented, the defendant’s one-time, selective harvest aligned with maintenance and forest health, not with running a business on the land.

Impact and Practical Implications

This decision supplies a clarifying rule for New Hampshire property law: where a residential covenant bans “commercial activity,” the phrase is read to prohibit operating a commercial business on the land, not to prohibit isolated, incidental transfers of goods for money that accompany otherwise permissible land maintenance. The implications are significant:

For Property Owners: One-time, selective timber cuts undertaken for forest health, safety, or site preparation—especially where the landowner is not running a logging operation—are less likely to violate “commercial activity” bans. The monetary proceeds (even substantial) do not, by themselves, convert maintenance into a commercial business.
For Drafters of Covenants and Associations: If the aim is to forbid timber harvesting or the sale of natural resources outright, covenants should say so expressly. Consider:
- Defining “commercial activity” to include the sale or removal of timber, gravel, soil, or other natural resources for remuneration, whether occasional or ongoing.
- Articulating whether forestry activities are permitted for maintenance, forest health, or safety, and under what parameters (e.g., permits, basal area retention, no clear-cutting).
- Including an express fee-shifting clause if enforcement costs are a concern, as fee recovery otherwise depends on separate legal doctrines not at issue here.
For Litigants: The opinion highlights evidentiary themes that matter:
- Frequency and continuity (one-time maintenance versus ongoing operations).
- Purpose (forest health, site preparation, hazard removal versus profit-making enterprise).
- Operational hallmarks (holding out to the public, regularity, equipment staging, employees, signage, customer traffic) indicative of running a business from the land.
Plaintiffs relying on “commercial activity” covenants should be prepared to show business operations, not merely a paid transaction associated with land maintenance.
For Trial Courts: The decision counsels harmonizing related covenant provisions. A broad term like “commercial activity” should be read in light of maintenance and aesthetic provisions, avoiding interpretations that produce internal inconsistency.

Complex Concepts Simplified

Restrictive Covenants: Private deed-based promises that restrict how land may be used. Courts interpret them according to their text and intended meaning at the time of drafting, often construing them narrowly and in context with the deed as a whole.
“Commercial Activity” in Covenants: In this case, the term refers to operating a for-profit business from or on the land. It does not ordinarily include a one-time, incidental sale of goods stemming from permitted maintenance activities on the property.
“Isolated Exchange of Money for Goods”: A non-recurring transaction (e.g., receiving payment for timber resulting from a selective maintenance cut) that does not amount to running a business on the property.
“No Lot Shall Be Stripped of Trees”: Aesthetic and environmental protection clause aimed at forbidding clear-cutting or removing trees to such a degree that a lot is essentially denuded. It does not preclude selective forestry carried out for health, safety, or maintenance consistent with “proper and orderly” upkeep.
Summary Judgment: A procedural mechanism to resolve cases without trial when no material facts are genuinely disputed and the movant is entitled to judgment as a matter of law. Courts view the record in the light most favorable to the nonmovant.
De Novo Review: The appellate court gives no deference to the trial court on questions of law (such as interpreting deed language), deciding the issue anew.
Supreme Court Rule 20(3) Order: A procedural path the New Hampshire Supreme Court uses to decide certain cases by order rather than a full written opinion. Practitioners should consult Rule 20(3) regarding citation and precedential use.

Unaddressed or Narrowly Addressed Questions

Agricultural Activity for Profit: The covenant also bans “agricultural activity for profit.” The Court’s analysis focused on “commercial activity.” It did not decide whether a selective timber harvest of the kind described constitutes “agricultural activity for profit.” On this record, the Court’s harmonized reading with the maintenance clause signals that selective forestry for property upkeep is permissible, but the agricultural-activity question remains text- and fact-dependent in other cases.
Degree of Cutting That Becomes “Stripping”: The Court indicated that selective harvesting that does not amount to clear-cutting is not stripped-of-trees. It did not fix a quantitative threshold for when a harvest becomes “stripping,” leaving that assessment to the text, context, and facts of future disputes.
Attorney’s Fees: Because the plaintiff’s merits victory was vacated, the Court did not address her appeal from the denial of fees. Absent a statute, rule, or contract clause, fee-shifting is generally exceptional, so covenant drafters who seek fee-shifting should include it expressly.

Practical Takeaways

Covenants that broadly prohibit “commercial activity” will be read in context; they do not automatically bar all paid activities, particularly when the payment is incidental to permitted maintenance.
The presence of a carve-out for home-based professional services supports reading “commercial activity” as targeting business operations, not incidental transactions conducted on the land.
Maintenance and aesthetic clauses can authorize selective forestry practices; a reading that would forbid sensible maintenance as “commercial” is disfavored.
To avoid ambiguity, covenants should expressly speak to natural resource removal and sale, short-term rentals, roadside sales, or other activities that communities may wish to regulate or prohibit.
Parties seeking or opposing injunctions should develop evidence about purpose, frequency, and business indicia; those facts can decide whether activity is “commercial.”

Conclusion

The New Hampshire Supreme Court’s order in Wolf v. Brown sharpens the meaning of “commercial activity” in residential restrictive covenants: it targets the operation of a business on the land, not a one-time, selective timber harvest undertaken for forest health and property maintenance—even where the owner receives payment for the harvested timber. By reading the covenants as a whole and reconciling the commercial-activity prohibition with the separate maintenance and anti-stripping provisions, the Court avoided an internally inconsistent result that would punish sensible land stewardship.

Going forward, property owners and associations should expect courts to distinguish between ongoing business operations and incidental, maintenance-related activities that involve payment. Drafters who intend to restrict forestry or the sale of natural resources must do so with clear, specific language. The decision thus promotes doctrinal clarity while preserving the practical ability of landowners to maintain forest health without inadvertently violating broad, general bans on “commercial activity.”

Justices MacDonald, C.J., and Bassett, Donovan, and Countway, JJ., concurred.