Updated: Nov 11, 2020
By Kelly Nuckolls
This is not a substitute for legal or financial advice. See here for the site’s reposting policy.
A conservation easement is one tool farm families can use to prevent development on their land. For some, a conservation easement provides a peace of mind that the farmland will never be developed into a residential, industrial, or commercial area because some conservation easement agreements, like the Maryland Agricultural Land Preservation Foundation’s easements, last forever.
Some types of conservation easement agreements also have specific restrictions on what can and cannot be done once farmland is placed into a conservation easement. For example, some agreements prohibit dividing land placed into the conservation easement into separate parcels. What happens if co-owners later disagree about what to do with the property – will they never be able to divide the property?
Ohio courts recently heard a case about a perpetual, or indefinite, conservation easement agreement prohibiting partition, which divides a piece of property among its co-owners into separate individually owned sections. A brother and sister were co-owners of farmland subject to a conservation easement that did not allow the property to be divided into two or more parcels. Because the property could not be divided, the sister decided to request that the court force the sale of the entire property. But even after a sale, the new owners of the property would still have to comply with the conservation easement agreement.
The brother argued the land should be divided. The brother’s reasoning was based on Ohio courts’ stating a co-owner’s right to partition must be limited to a reasonable amount of time. The brother argued Ohio Courts require the “reasonable amount of time” to be based on evidence the prohibition on partition is necessary for accomplishing a specific purpose. Here, the brother argued, there was no purpose or reason to forbid the division of the property.
The trial court agreed with the brother, stating while a conservation easement can last forever, it cannot prohibit the division of property forever. The trial court found no specific reason that the prohibition on partition was necessary, because the conservation easement could still continue on each separate parcel of land. Based on this decision, the land would have been divided into two separate parcels and both parcels would still be subject to the conservation easement.
The sister appealed the decision. The Court of Appeals disagreed with the trial court, stating there are valid reasons an indefinite prohibition on subdividing the property is necessary to preserve a conservation easement. For example, the Court of Appeals discussed how the indefinite prohibition on partition could help limit the number of residential homes on the property and reduce the costs of monitoring the property to ensure it is being maintained according to the conservation easement. The Court of Appeals concluded the conservation easement agreement’s indefinite prohibition on partition was valid and must be upheld. If there is no appeal, the land will not be divided.
Maryland law also would most likely uphold a conservation easement agreement’s indefinite prohibition on partition. Maryland law specifically allows a person to waive their right to partition through an agreement, and Maryland courts have discussed how a co-owner can give up their right to partition through an express agreement.
As you create your farm succession and estate plans, it is helpful to think about, and discuss with an attorney, whether or not a perpetual conservation easement and a prohibition on partition of the property would help you accomplish your goals.
Taylor v. Taylor, Nos. CA2017-05-062, CA 2017-05-067, 2018 Ohio App. Lexis 1705 (Ohio Ct. App. Apr. 23, 2018)
Taylor v. Taylor, No. CV2015071709, 2017 Ohio Misc. Lexis 3497 (Ohio Ct. Common Pleas Apr. 19, 2017).
Balderston v. Balderston, 388 A.2d 183 (Md. Ct. Spec. App. 1978).
Md. Real Property Code Ann. 1-104.