PastPaperHero | Rights in real property

Learning Outcomes

This article explains rights in real property, including:

How the scope of easements, profits à prendre, covenants, and licenses is defined by the grant, surrounding circumstances, historical use, and reasonableness limits.
How to distinguish appurtenant from in gross, exclusive from non-exclusive, and commercial from personal interests, and why those labels control divisibility and transfer.
How apportionment works when dominant or servient land is subdivided, and when multiple holders can share a single nonpossessory right without creating an impermissible burden.
How increased or changed use may constitute overburdening or surcharge, and the typical remedies courts use to restrict, modify, or terminate the right.
How profits à prendre, easements, covenants, and licenses are treated differently on the MBE with respect to assignability, enforceability against successors, and extinguishment.
How to read common exam fact patterns involving roads, utility lines, resource extraction, recreational uses, and subdivision plats to spot apportionment and scope issues quickly.
How to eliminate distractor answers by applying stepwise reasoning—identify the type of interest, classify the right, assess scope, and evaluate any alleged overburdening.

MBE Syllabus

For the MBE, you are required to understand rights in real property, with a focus on the following syllabus points:

The nature of easements, profits à prendre, and licenses as nonpossessory interests in land
How the scope of an easement or profit is set by the grant, prior use, and reasonableness
Apportionment of profits, easements, and covenants when the benefited or burdened land is subdivided or when the right is transferred
The distinction between appurtenant and in gross interests, and exclusive vs non-exclusive interests, in apportionment problems
The concepts of overburdening and surcharge, and when increased use or sharing exceeds the permitted scope
The effect of misuse, overburdening, and changed circumstances on the continued existence and enforceability of these rights

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

In which situation is a profit à prendre in gross most clearly apportionable among several holders?
1. A non-exclusive profit in gross to fish in a pond, granted to A, who sells shares to friends
2. An exclusive profit in gross to remove sand, granted to a mining company, which later brings in a joint venture partner
3. A profit appurtenant to Blackacre to cut timber, when Blackacre is subdivided into multiple lots
4. A license to park on a neighbor’s land, which the licensee attempts to assign to a third party
A landowner grants an express right-of-way easement appurtenant to a ten‑acre farm. The farm is later subdivided into ten one‑acre residential lots. Which statement best describes the usual rule?
1. The easement is extinguished upon subdivision
2. Each lot owner may use the easement, even if use increases, so long as the added use is not an unreasonable burden on the servient estate
3. Only the original farm owner may continue to use the easement
4. Use of the easement by any purchaser is a per se overburdening
A non-exclusive, recreational profit in gross to hunt on Greenacre is granted to A. A then purports to transfer one‑half of the profit to B. The increased hunting pressure seriously interferes with the owner’s use of Greenacre. Which outcome is most consistent with the traditional rule?
1. Apportionment is valid; both A and B may hunt without restriction
2. Apportionment is invalid; the attempted split is ineffective, and continued excessive use may justify termination
3. Apportionment is valid only if expressly authorized in the original grant
4. Apportionment is valid only if the landowner consents in writing each season
A dominant owner uses an easement appurtenant more intensively over time. At what point does increased use become legally problematic?
1. Any increased use is automatically barred as overburdening
2. Increased use is allowed unless the servient owner objects within a reasonable time
3. Increased use is permitted if it is a reasonably foreseeable development of the original use and does not place an unreasonable additional burden on the servient estate
4. Increased use is irrelevant; scope is determined solely by the language of the grant, without regard to burden

Introduction

Rights in real property are not always held by a single person or entity. The law allows for the division and sharing of property rights, which can include the right to use, access, or take resources from land. On the MBE, these issues arise most often with easements, profits à prendre, and covenants.

Understanding how these rights can be scoped, apportioned, and enforced is essential for MBE success. You must be able to identify:

What the right allows and forbids (its scope)
Who may use or benefit from the right, and how that use can be apportioned
When increased or changed use becomes an improper overburdening or surcharge

Key Term: Scope
The legal extent, boundaries, and limitations of a property right, defining what the holder may or may not do.

Key Term: Apportionment
The division or sharing of a property right, benefit, or burden among multiple parties, so that each holds a share.

Scope of Rights in Real Property

The "scope" of a property right refers to the extent and limitations of that right. For example, an easement may allow only pedestrian access, not vehicle access, or a profit may permit removal of timber but not minerals. Scope is determined primarily by:

The language of the instrument creating the right
The circumstances and purpose of the grant
Prior or historical use
Reasonableness: burdens on the servient land must remain within what was contemplated

Key Term: Easement
A nonpossessory right to use another’s land for a specified purpose.

Key Term: Dominant Estate
The parcel of land that benefits from an easement or covenant.

Key Term: Servient Estate
The parcel of land that is burdened by an easement or covenant.

Most scope questions on the MBE involve a change in use (e.g., from agricultural to heavy commercial traffic) or a change in intensity of use (e.g., many more users after subdivision). A change that is a natural, reasonably foreseeable evolution of the original use is often allowed; a change that substantially increases the burden on the servient estate may be prohibited as overburdening.

Key Term: Overburdening
The excessive use of a property right beyond its original scope, often due to subdivision, increased intensity of use, or misuse.

Apportionment of Rights

"Apportionment" is the division or sharing of a property right among several parties. This can occur when:

The benefited or burdened land is subdivided
A right such as a profit or easement in gross is shared with additional holders
Benefits or burdens of covenants are spread across multiple parcels or owners

Not every right is freely apportionable. Whether a right can be divided depends on its nature (appurtenant vs in gross, exclusive vs non-exclusive) and on whether the division will increase the burden on the servient estate beyond what was contemplated.

Profits à Prendre and Apportionment

A profit à prendre is the right to enter another's land and take natural resources (such as minerals, timber, or game).

Key Term: Profit à Prendre
A right to enter another’s land and take part of the land or its natural products (for example, timber, minerals, or game).

Profits can be:

Appurtenant: tied to ownership of a dominant estate
In gross: held personally, independent of any land

They can also be:

Exclusive: the profit holder has the sole right to take the resource, sometimes excluding even the landowner
Non-Exclusive: the landowner and/or others may also take the resource

Key Term: Exclusive Profit
A profit held by one party with the sole right to take the resource, sometimes excluding even the landowner.

Key Term: Non-Exclusive Profit
A profit where the landowner and possibly others also retain rights to take the resource.

1. Apportionment of Profits in Gross

For profits in gross, apportionment turns largely on exclusivity:

Exclusive profit in gross
Traditionally, an exclusive profit in gross is apportionable. The original holder may transfer shares to others, and the transferees may exercise the profit concurrently, so long as the total use does not exceed the scope originally contemplated and does not unreasonably burden the servient land.
Non-exclusive profit in gross
A non-exclusive profit in gross is generally not apportionable. Because the servient landowner retained rights to the resource, allowing the original holder to create additional co-holders would multiply the number of takers beyond what was contemplated, increasing the burden.

The MBE often tests this distinction. If a problem tells you a profit in gross is “exclusive” and the grantee later shares it, apportionment is usually valid unless the land is clearly overburdened. If the profit is “non-exclusive,” attempted apportionment is usually ineffective and may support termination if it leads to serious overuse.

2. Apportionment of Profits Appurtenant

For profits appurtenant, the right is attached to ownership of a particular parcel (the dominant estate). When the dominant land is subdivided:

Each parcel derived from the original dominant estate generally receives the benefit of the profit
Each new owner may exercise the profit, but only to the extent that the combined use does not impose a substantially greater burden on the servient estate than originally contemplated

Key Term: Subdivision
The division of a single parcel of land into multiple separate lots or tracts, each capable of separate ownership.

Because profits allow removal of resources, overuse can quickly deplete the servient estate. Courts are more willing to restrict or terminate a profit that has been overburdened than an easement used more intensively.

From a takings standpoint, profits are recognized property interests; the holder of a profit for life or for an indefinite term is usually entitled to a share of any condemnation award if the government takes the servient land and extinguishes the profit.

Apportionment of Easements

Like profits, easements can be appurtenant or in gross:

Key Term: Easement Appurtenant
An easement created to benefit a particular parcel of land (the dominant estate); it automatically passes with the dominant land.

Key Term: Easement in Gross
An easement that benefits a person or entity rather than a parcel of land; there is no dominant estate.

1. Appurtenant Easements and Subdivision

If the dominant estate is subdivided, the basic rule is:

General rule: All portions of the dominant estate may use the easement, so long as the combined use does not unreasonably increase the burden on the servient estate.

For example, if a ten‑acre farm has a right-of-way easement and is later divided into residential lots, each lot owner may typically use the right of way. Increased traffic is allowed if it is a reasonably foreseeable development of the original use. But if the use dramatically changes in kind or degree—such as heavy industrial truck traffic on a narrow farm lane—that may be an improper overburdening.

Key Term: Surcharge
A use of an easement that goes beyond its lawful scope or materially increases the burden on the servient estate.

The common remedies for surcharge are:

Injunctive relief limiting use to proper scope
In extreme or repeated cases, possible termination of the easement

2. Easements in Gross and Apportionment

For easements in gross, the apportionment rules parallel those for profits:

Commercial easement in gross (e.g., utility lines, railroad rights)
- Usually assignable
- Often apportionable among multiple users, so long as the aggregate burden on the servient estate does not materially increase
Purely personal or recreational easement in gross
- Traditionally non-assignable and non-apportionable
- Any attempt to share such rights tends to be invalid

Whether an easement in gross is “commercial” is a fact question. A telephone company’s easement to place lines is clearly commercial. A family’s right to use a neighbor’s private beach is generally personal.

Apportionment of Covenants

Covenants are promises concerning the use of land. They may be enforceable either as real covenants (damages) or as equitable servitudes (injunctions).

Key Term: Real Covenant
A promise concerning land that runs with the land at law, allowing the promisee to recover damages from successors if the elements are met.

Key Term: Equitable Servitude
A promise concerning land that is enforced in equity by injunction against successors with notice.

When land is subdivided, both the benefit and burden of covenants can be apportioned:

Benefit apportionment: If a covenant benefits a tract that is later subdivided (e.g., a promise that land to the south will remain a park for the benefit of “owners of Blackacre”), each successor owner of a portion of Blackacre generally enjoys the covenant’s benefit.
Burden apportionment: If the servient land is subdivided, each parcel typically takes subject to the burden, provided the elements for running with the land are met.

However, apportionment cannot materially increase the burden beyond what was contemplated. For example, if each lot in a subdivision is subject to a covenant to pay assessments to a homeowners’ association, each lot owner is typically liable for a share of the assessments but not for more than the proportionate obligation attached to that lot.

Licenses and Apportionment

A license is a mere permission to use land, generally revocable at will and not considered a property interest.

Although the MBE outline groups licenses with easements and profits, key differences matter:

Licenses are usually personal to the licensee and not transferable or apportionable
Attempted “apportionment” of a license (e.g., a ticket holder “selling” separate rights to multiple people) is usually ineffective

Because licenses are not property interests, issues of running with the land and apportionment rarely arise; instead, exam questions tend to test whether a supposed “easement” is actually an oral license.

Overburdening, Misuse, and Surcharge

Overburdening occurs when the use of a right exceeds its proper scope. Classic overburdening fact patterns involve:

Using an easement appurtenant to benefit land beyond the dominant estate
Intensifying use after subdivision in a way that imposes a substantially greater burden on the servient land
Splitting a profit or commercial easement in gross among too many users, leading to depletion or serious interference with the servient owner’s use

Where overburdening is found:

The usual remedy is to limit the use to its proper scope, often by injunction
If the overburdening is extreme or cannot be separated from legitimate use, the right may be terminated

On the MBE, analyze:

What the original grant allowed
Whether the right is appurtenant or in gross
Whether the increased use is a reasonably foreseeable development or a substantial change in kind or degree
Whether the servient estate is harmed beyond what was originally contemplated

Exam Warning

Overburdening is a common MBE trap. If a right is apportioned among too many parties or used in a way that exceeds its original scope, the right may be limited or lost. Always consider the effect of subdivision or transfer on the burden to the servient land.

Revision Tip

When answering MBE questions, always ask: Does the division or sharing of the right increase the burden on the land beyond what was originally intended? If so, the right may be limited or terminated.

Worked Example 1.1

A owns Blackacre and grants B a profit à prendre to remove gravel, with no limit on quantity. The grant states that the profit is exclusive. B later sells half his interest to C. Can both B and C remove gravel, and are there any limits?

Answer:
Because the profit is exclusive and in gross, B may apportion the profit by transferring a share to C. Both B and C may remove gravel, but only up to the total use contemplated by the original grant. If their combined removal unreasonably depletes the land or goes beyond what was intended, the servient owner may seek to limit or terminate the profit for overburdening.

Worked Example 1.2

D owns Whiteacre, which benefits from a right-of-way easement appurtenant over Greenacre. D subdivides Whiteacre into four lots, each sold to a different buyer. Can all four new owners use the easement?

Answer:
Generally, yes. Because the easement is appurtenant, the benefit runs with each portion of the dominant estate. All four owners may use the easement, provided their combined use does not impose a substantially greater burden on Greenacre than originally contemplated. If the increased traffic becomes unreasonable (for example, large commercial trucks on what was a farm lane), the servient owner may seek to limit or enjoin the overburdening use.

Worked Example 1.3

A landowner grants a non-exclusive profit to E to fish in a pond, but does not specify exclusivity. E sells shares to ten friends, who all begin fishing daily. The fish population declines rapidly. What is the likely legal result?

Answer:
Because the profit was non-exclusive, E did not have the right to apportion it among others in a way that increased the number of users beyond what the grant contemplated. The attempted apportionment to the friends is likely ineffective. The servient owner can seek to enjoin the excessive use and may be able to terminate the profit if the overburdening is severe and persistent.

Worked Example 1.4

Grantor conveys “a right-of-way for one car at a time over the existing gravel lane” to serve Farmacre. Farmacre is later divided into 20 small lots for a townhouse development. Each purchaser uses the lane for daily commutes, and the servient owner claims overburdening. How should a court rule?

Answer:
The easement is appurtenant and normally passes to all lots derived from Farmacre. However, the language (“for one car at a time over the existing gravel lane”) and the original rural context suggest a modest level of use. Twenty townhouses with daily commuter traffic substantially increase the burden and may go beyond what was contemplated. A court is likely to limit the use (for example, to a smaller number of users or to a less intensive use) or require improvements at the dominant owners’ expense, and could enjoin development if the use cannot be accommodated without unreasonable burden.

Worked Example 1.5

O owns a large tract and records a subdivision plat showing 50 lots and an internal private road. O then conveys Lot 1 to B “together with the benefit of all covenants and easements shown on the recorded plat” and later sells the remaining lots to other buyers subject to a covenant that “all lot owners shall pay annual assessments to the Association.” B claims she is liable only for a fraction of the assessments because the covenant’s burden should be “apportioned” among all lots. Is that correct?

Answer:
The covenant to pay assessments runs with each lot in the subdivision. The burden is “apportioned” in the sense that each lot is individually obligated to pay its share, set by the terms of the governing documents. B cannot reduce her own obligation by pointing to the existence of other lot owners; each lot is fully subject to the covenant. Her liability is determined by the covenant’s formula (for example, equal shares per lot), not by informal notions of apportionment.

Key Point Checklist

This article has covered the following key knowledge points:

The scope of a property right defines its legal extent and limitations, determined by the grant, context, and reasonable expectations.
Apportionment is the division of rights among multiple parties; whether it is allowed depends on the type of right (appurtenant vs in gross, exclusive vs non-exclusive) and the resulting burden on the servient land.
Profits à prendre in gross are generally apportionable only if exclusive; non-exclusive profits usually cannot be split if that increases the number of takers and burdens the servient estate.
Profits and easements appurtenant typically follow the dominant estate when it is subdivided; each new owner may use the right as long as the combined use does not unreasonably overburden the servient estate.
Commercial easements and profits in gross are often assignable and apportionable, whereas purely personal or recreational rights in gross and licenses are usually not.
The benefits and burdens of covenants (real covenants and equitable servitudes) can be apportioned among subdivided parcels, but the aggregate burden cannot exceed what was originally contemplated.
Overburdening and surcharge occur when increased or changed use exceeds the proper scope of the right; remedies include injunction, limitation of use, and, in extreme cases, termination.
On the MBE, always analyze whether the right is appurtenant or in gross, exclusive or non-exclusive, and whether the proposed sharing or intensified use materially increases the burden on the servient estate.

Key Terms and Concepts

Scope
Apportionment
Profit à Prendre
Exclusive Profit
Non-Exclusive Profit
Easement
Dominant Estate
Servient Estate
Easement Appurtenant
Easement in Gross
Surcharge
Real Covenant
Equitable Servitude
Overburdening
Subdivision

Rights in real property - Scope and apportionment