Is a Timber Harvest a “Commercial Activity”?

In 2013, the original owners of a three-lot subdivision in Dublin recorded restrictive covenants intended to preserve the character and appearance of the neighborhood. The covenants prohibited “commercial, industrial or manufacturing activity of any kind or character, or agricultural activity for profit” on the land, with a limited exception allowing certain professional services within a single-family residence. They also contained a separate provision stating that, to preserve the area’s beauty, no lot shall be stripped of trees. Finally, the covenants provided that “every lot and structure thereon shall be maintained in a proper and orderly fashion.”

The owner sold one of the lots to the plaintiff in 2016 and the remaining two lots, totaling seventy-eight acres, to the defendant in March 2021, subject to the recorded covenants.

A month later, in April 2021, the defendant filed a notice of intent to cut, hired a logging company, and prepared to harvest timber on approximately sixty-four of his seventy-eight acres. He anticipated receiving about $80,000. According to his affidavit and his forester, the purpose of the harvest was to improve forest health, wildlife habitat, and open space in anticipation of building a home. Cutting began on June 7, 2021, and by June 21, about sixty percent of the marked timber had been cut, for which the defendant had received roughly $45,000.

On June 17, before the harvest was complete, the plaintiff filed suit in superior court seeking a permanent injunction, arguing the activity violated the covenant prohibiting commercial activity.

How Would You Rule?

Does hiring a logging company and receiving payment for harvested timber amount to “commercial activity of any kind or character” or “agricultural activity for profit” in violation of the covenants?  Or is that activity land stewardship, habitat improvement, and residential preparation?

What the Courts Did

The superior court treated the timber sale as prohibited commercial activity. It issued a temporary restraining order, then a preliminary injunction, and ultimately granted summary judgment to the plaintiff. Following a bench trial, the court permanently enjoined further timber harvesting. It reasoned that contracting with a forester and selling timber (presumably at a profit) constituted commercial activity. The court denied the plaintiff’s request for attorney’s fees.

The New Hampshire Supreme Court viewed the matter differently. It held that the covenant’s plain language prohibited operating a commercial business on the land, not an isolated exchange of money for goods connected to property stewardship. Reading the covenants together, including the provision aimed at preserving forest beauty, the Court concluded that a selective, one-time harvest undertaken to maintain the property did not amount to prohibited commercial activity.

Did your interpretation align with the Supreme Court’s? Were you surprised by the order, or did the language of the covenants point you in that direction from the start?

Wolf v. Brown, No. 2024-0068 (N.H. Jul. 1, 2025) (order).  (Because the Court issued an “order” rather than an “opinion,” the ruling has no precedential authority over other cases, but it may provide guidance on how New Hampshire courts may approach similar issues in the future.)

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