Maine Low-Impact Landscaping Law

Chapter 28-B is one section long, added by PL 2023, c. 376. It does something Maine law rarely does: it tells private governing documents what they may not restrict. If you have been told your rain garden, pollinator planting or drought-tolerant bed must come out and go back to lawn, this is the provision to read.

What counts as low-impact landscaping

The definition in section 1451(1)(B) is worth reading closely, because its two halves pull in opposite directions. The means clause is a list of four attributes joined by and — on its face a planting has to do all four, which is an association's best argument. The includes clause then deems three categories in regardless. It means “landscaping techniques that conserve water, lower maintenance costs, provide pollution prevention and create habitat for wildlife”, and it expressly includes:

• gardens and other features designed to attract wildlife generally, and pollinator species more specifically;
• rain gardens and other features that use natural biological principles to return rainwater to the soil and filter it of excess nutrients; and
• other forms of landscaping or gardening that reduce or eliminate the need for supplemental water from irrigation.

The prohibition, and the turf-grass clause

Section 1451(2) provides that a restriction may not put an unreasonable limitation on low-impact landscaping on a qualifying portion of the property.

“Restriction” is defined widely at section 1451(1)(D) — it “includes any covenant, restriction or condition contained in a deed, declaration, contract, bylaw, rule or other instrument governing activities on real estate” within a covered property. A board cannot get round it by putting the requirement in a rule rather than the declaration.

“Unreasonable limitation” is defined at section 1451(1)(E) and includes a limitation that:

• significantly increases the cost of low-impact landscaping;
• significantly decreases its efficiency; or
• requires cultivated vegetation to consist in whole or in part of turf grass.

That last one is the operative clause for most disputes. A rule that says your planted areas must be lawn — in whole or in part — is named by the statute as an unreasonable limitation.

Which properties it covers — read this before relying on it

Section 1451 applies to a condominium or to real estate subject to common ownership. Both terms are defined, and the definitions turn on how the common land is owned.

“Condominium” takes its meaning from section 1601-103(7) of the Maine Condominium Act: real estate with portions designated for separate ownership and the remainder for common ownership solely by those owners under a declaration duly recorded pursuant to that Act — and “[r]eal estate is not a condominium unless the undivided interests in the common elements are vested in the unit owners.” The same definition ends with a carve-out worth knowing before you classify your own community: “[a]ny real estate development consisting exclusively of clustered, detached, single family residences is not a condominium, unless so designated in the declaration”. Such a development may still qualify as real estate subject to common ownership under the next definition, but it does not get there as a condominium.

“Real estate subject to common ownership” is section 1451's own term, and it is the same shape with the Condominium Act formalities removed: residential real estate, portions designated for separate ownership, the remainder designated for common ownership solely by the owners of those portions, “and that common ownership is in the form of undivided interests in that common portion.”

So the section reaches past Condominium Act condominiums — to the same ownership structure created outside that Act, such as an older Unit Ownership Act condominium or a common-ownership scheme never brought under either statute. But both definitions require the common portion to be held as undivided interests by the owners of the separate portions.

That matters for a conventional subdivision. Where the common land is owned by the association — a nonprofit corporation holding title in its own name, which is how many Maine subdivisions are set up — the common portion is not held in undivided interests by the lot owners, and on the face of these definitions the section does not reach it. Whether your community is inside or outside is a question about your deed and your declaration, not one this page can answer for you. If you are in that position it is worth putting to a Maine lawyer before assuming either way.

Three further limits

• Only a portion that is both yours and not commonly owned. The protection runs to a portion “that is not subject to common ownership and that the owner has the right to exclusive use of”. Those are two conditions, not one, and the first one is the trap for condominium owners: a patio, deck or garden plot allocated to a single unit is normally a limited common element, which § 1601-103(16) defines as “a portion of the common elements” — so however exclusive the use, it is still subject to common ownership and fails the first condition on the face of the text. The Legislature knows how to reach a limited common element when it wants to: § 576-A says “unit parking space or limited common element parking space”. Section 1451 says no such thing. If your planting is on an exclusive-use area rather than land you own outright, that is a question for a Maine lawyer, not a settled right.
• And in a condominium, check where your unit stops. A “unit” under § 1601-103(26) is the physical portion whose boundaries the declaration describes. In many condominiums those boundaries are the walls, and every square foot of plantable ground outside them is common element or limited common element. Read the boundary description before relying on this section.
• You have to keep it up. The protection applies “as long as the owner maintains and regularly tends to the low-impact landscaping.” A neglected bed loses the shelter of the statute.
• Design guidelines survive. Section 1451(3) says the section “may not be construed to prohibit a restriction relating to reasonable design and aesthetic guidelines regarding the type, number and location of low-impact landscaping features.” An association may still regulate what kind, how many and where — it simply may not use that power to impose an unreasonable limitation or to require turf grass.
• Historic property is outside it altogether. The second sentence of § 1451(3): the section “does not apply to a restriction on historic property that is listed in or determined by the Maine Historic Preservation Commission to be eligible for inclusion in the National Register of Historic Places.”
• It runs to the owner. Every operative phrase in § 1451(2) is about “the owner” — the one with the right to exclusive use, and the one who must tend the planting. A tenant is not within it.

One more thing the section does not contain: a remedy. Chapter 28-B is § 1451 and nothing else, and § 1451 states a prohibition without saying that an offending restriction is void, without creating a cause of action, and without shifting fees. Compare § 576-A, two chapters away, which says a conflicting provision “is void and unenforceable” and that in any enforcement action “the prevailing party must be awarded reasonable attorney's fees”. The drafter had that language available and did not use it here.

Finally, the section does not apply at all to a restriction on historic property that is listed in, or determined by the Maine Historic Preservation Commission to be eligible for inclusion in, the National Register of Historic Places.

No cut-off date

Worth noting alongside Maine's other covenant-override statute: the Solar Rights law at chapter 28-A reaches only legal instruments adopted or created after 30 September 2009. Section 1451 carries no equivalent limitation. Nothing in the section confines it to documents of any particular vintage.