Learning Outcomes
After reading this article, you will be able to identify and explain how rights in real property can be divided, apportioned, or shared among multiple parties. You will understand the legal principles governing the scope of property rights, the apportionment of use and profits, and how these concepts are tested on the MBE. You will also be able to apply these rules to MBE-style questions.
MBE Syllabus
For MBE, you are required to understand how rights in real property can be divided and apportioned among different parties. This includes the scope of property rights, the division of use, and the sharing of profits or burdens. For revision, focus on:
- The meaning of "scope" in real property rights, including limitations and extent of use.
- The concept of "apportionment"—how rights, benefits, or burdens in land can be divided among multiple parties.
- The division of profits (profits à prendre), easements, and covenants.
- The rules governing the sharing or splitting of rights to use, access, or benefit from land.
- The effect of subdivision or transfer of land on existing rights and obligations.
- The consequences of overburdening or misuse of apportioned 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.
- What does "apportionment" mean in the context of profits à prendre?
- If an easement is granted to benefit a parcel of land, and that parcel is later subdivided, do all new owners automatically share the easement?
- Can a profit à prendre be split among multiple parties, and if so, what limits apply?
- What is the legal consequence if the use of an apportioned right exceeds its proper scope?
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. Understanding how these rights can be scoped, apportioned, and enforced is essential for MBE success. This article explains the key principles of scope and apportionment, focusing on easements, profits, and covenants, and how these rights may be divided or limited among multiple parties.
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.
Key Term: Scope The legal extent, boundaries, and limitations of a property right, defining what the holder may or may not do.
Apportionment of Rights
"Apportionment" is the division or sharing of a property right among several parties. This can occur when land is subdivided, or when a right such as a profit or easement is expressly granted to more than one person.
Key Term: Apportionment The division of a property right, benefit, or burden among multiple parties, so that each holds a share.
Types of Apportionment
1. Apportionment of Profits (Profits à Prendre)
A profit à prendre is the right to enter another's land and take natural resources (such as minerals, timber, or game). Profits can be apportioned in two main ways:
- Apportionment in Gross: The profit is held independently of ownership of any land. If the profit is exclusive, the holder may transfer shares to others, but only up to the total amount originally granted. Non-exclusive profits may not be split among multiple parties if this would overburden the land.
- Apportionment Appurtenant: The profit is attached to ownership of a particular parcel (the dominant tenement). If the dominant land is subdivided, the profit may be shared by all new owners, but only if this does not impose a greater burden on the servient land than originally intended.
Key Term: Profit à Prendre A right to enter another’s land and take part of the land’s natural resources.
Key Term: Exclusive Profit A profit held by one party with the sole right to take the resource, excluding even the landowner.
Key Term: Non-Exclusive Profit A profit where the landowner and/or others may also take the resource.
2. Apportionment of Easements
Easements grant rights to use another’s land for a specific purpose (e.g., right of way). If the dominant estate is subdivided, the easement may be shared by all new owners, provided this does not unreasonably increase the burden on the servient estate.
Key Term: Easement A nonpossessory right to use another’s land for a specified purpose.
3. Apportionment of Covenants
Covenants are promises concerning the use of land. The benefit or burden of a covenant may be apportioned if the land is subdivided, but only to the extent that the original intent and the burden on the land are not exceeded.
Overburdening and Misuse
If the use of an apportioned right exceeds its proper scope (for example, if a subdivided parcel uses an easement in a way that imposes a much greater burden than originally intended), the servient owner may seek to limit or terminate the right.
Key Term: Overburdening The excessive use of a property right beyond its original scope, often due to subdivision or misuse.
Worked Example 1.1
A owns Blackacre and grants B a profit à prendre to remove gravel, with no limit on quantity. B later sells half his interest to C. Can both B and C remove gravel, and are there any limits?
Answer: Yes, if the profit is exclusive, B may transfer shares to C, and both may remove gravel up to the total originally granted. However, if the profit is non-exclusive, splitting the right may not be allowed if it would overburden Blackacre.
Worked Example 1.2
D owns Whiteacre, which benefits from a right of way easement 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, if the use by all four owners does not impose a substantially greater burden on Greenacre than originally intended. If the increased use is unreasonable, the servient owner may seek to limit or terminate the easement.
Worked Example 1.3
A landowner grants a 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: If the profit was non-exclusive, E may not apportion the right among others if this imposes a greater burden than originally contemplated. The servient owner may seek to terminate the profit for overburdening.
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.
Key Point Checklist
This article has covered the following key knowledge points:
- The scope of a property right defines its legal extent and limitations.
- Apportionment allows division of rights among multiple parties, but only within the original scope.
- Profits à prendre can be apportioned if exclusive, but not if this overburdens the land.
- Easements and covenants may be shared by subdivided parcels, but not if this imposes an unreasonable burden.
- Overburdening or misuse of an apportioned right can lead to limitation or termination.
- The effect of subdivision or transfer on rights must always be considered for MBE questions.
Key Terms and Concepts
- Scope
- Apportionment
- Profit à Prendre
- Exclusive Profit
- Non-Exclusive Profit
- Easement
- Overburdening
