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