The Status of Private Covenants in Gross in Maine

Authors

Geoffrey Forney

Abstract

In State v. Moosehead Mountain Resort, the Maine Supreme Judicial Court recently held that the State may enforce a restrictive covenant in gross. The decision appears to create new law by departing from the established rule in Maine, as laid down in an earlier decision in Brown v. Heirs of Fuller, that restrictive covenants in gross are not enforceable in equity. Although the holding in Moosehead Mountain is arguably narrow because the case only addressed the government's ability to enforce covenants in gross, the Law Court's omission of any reference to or discussion of its decision in Brown leaves open the question of the enforceability of covenants in gross between private parties. The Law Court's reliance in Moosehead Mountain and in other recent cases on the Restatement of Property, which supports servitudes in gross generally, might signal a move away from the rule in Brown towards recognizing the validity of private covenants in gross, similar to easements in gross. This Article addresses the legal, historical, and public policy reasons why the Law Court should continue to follow the Brown decision to prevent the enforcement of private covenants in gross.

First Page

103

Recommended Citation

Geoffrey Forney, The Status of Private Covenants in Gross in Maine, 78 Me. L. Rev. 103 (2026).
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol78/iss1/5