Apportionment

APPORTIONMENT, distribution or allotment in proper shares; a term used in law in a variety of senses. (I) Sometimes it is employed roughly and with no technical meaning to indicate the distribution of a benefit (e.g., salvage, damages under the Fatal Accidents Act 5846, s. 2), or liability (e.g., general average contributions, or tithe-rent charge) or the incidence of a duty (e.g., obligations as to the maintenance of highways). (2) In its strict legal interpretation apportionment falls into two classes "apportionment in respect of estate" and "apportionment in re spect of time." Apportionment in Respect of Estate may result either from the act of the parties or from the operation of law. Where a lessee is evicted from, or surrenders or forfeits possession of, part of the property leased to him he becomes liable at common law to pay only a rent apportioned to the value of the interest which he still retains. So where the person entitled to the reversion of an estate assigns part of it, the right to an apportioned part of the rent incident to the whole reversion passes to his assignee. The assignee of the reversion of part of demised premises could not, at common law, re-enter for breach of a condition, inasmuch as a condition of re-entry in a lease could not at common law be apportioned. But this has now been altered by statute both in England (Law of Property Act 1925, s. 140), and in many colonies (e.g., Ontario, Rev. Stats., 1914, c. 15o; Barbados, No. 12 of 1891, S. 9; Nova Scotia, 210 R.S. of 1923; Victoria, of 1915, Stats. pt. vii; Manitoba, No. 2 of 1927). On the release from a rent charge of part of the land charged therewith, the lands not so released remain liable to a part only of the rent charge proportionate to their value unless the owners of such lands concur in the release of the rest of the lands originally liable, when the whole rent charge will be payable out of the lands not released (Law of Property Act, 1925 s. 70).

The Minister of Agriculture and Fisheries is now empowered to apportion rents of every kind, on the application of any per sons interested in the lands and in the rents (ib. ss. 191, 192).

Apportionment by Operation of Law

may be brought about where by act of law a lease becomes inoperative as regards its subject matter, or by the "act of God" (as, for instance, where part of an estate is submerged by the encroachments of the sea). To the same category belongs the apportionment of rent which takes place under various statutes (e.g., the Lands Clauses Con solidation Act 1845, s. 119, when land is required for public pur poses; the Agricultural Holdings Act 1923, s. 27, in case of a tenant from year to year receiving notice to quit part of a holding).

Apportionment in Respect of Time.

At common law, there was no apportionment of rent in respect of time. Such apportion ment was, however, in certain cases allowed in England by the Distress for Rent Act 1737, and the Apportionment Act 18J4, and is now allowed generally under the Apportionment Act 1870. Under the statute (s. 2) all rents, annuities, dividends, and other periodical payments in the nature of income, whether reserved or made payable under any instrument in writing or otherwise, are, like interest on money lent, to be considered as accruing from day to day and to be apportionable in respect of time accordingly. Persons entitled to apportioned parts of rent have the same remedies for recovering them when payable as they would have had in respect of the entire rent ; but a lessee is not to be liable for any apportioned part specifically. The rent is recoverable by the heir or other person who would, but for the apportionment, be entitled to the entire rent, and he holds it subject to distribution (s. 4). The Apportionment Act 1870 does not extend to annual sums made payable in policies of insurance (s. 6). Apportionment under the Act can be excluded by express stipulation.

The apportionment created by this statute is "apportionment in respect of time." The cases to which it applies are mainly cases of either (A) apportionment of rent due under leases where at a time between the dates fixed for payment the lessor or lessee dies or some other alteration in the position of parties occurs; or (B) apportionment of income between the representatives of a limited owner and the remainder-man when the limited interest determines at a time between the date when such income became due.

(A) With regard to the former of these classes it may be noticed that although apportioned rent becomes payable only when the whole rent is due, the landlord, in the case of the bank ruptcy of an ordinary tenant, may prove for a proportionate part of the rent up to the date of the receiving order (Bank ruptcy Act 1914, Sched ii. r. 2o) ; and that a similar rule holds good in the winding up of a company (in re South Kensington Co-Operative Stores 1881, 17 Ch.D. 16i); and further that the Act of 1870 applies to the liability to pay as well as to the right to receive rent (in re Wilson [1893], 62 L.J.Q.B. 628, 632). Accordingly where an assignment of a lease is made between two half-yearly rent days, it has been held that the assignee is not liable to pay the full amount of the half-year's rent falling due on the rent day next after the date of the assignment, but only an apportioned part of that half-year's rent computed from the last mentioned date (Glass v Patterson, 1902, 2 Ir. R. 66o).

(B) All dividends payable by public companies are apportion able, whether paid at fixed periods or not, unless the payment is, in effect, a payment of capital (s. 5) .

(C) In deciding on the real character of the payment the Court has regard to all the circumstances under which it is made, and more especially the powers and intention of the company in making the distribution. Where stocks representing capital are sold with an accrued or accruing dividend, the Courts of Equity disregarded, except in special circumstances, the claims of per sons entitled to income to have an apportionment of capital so realized made in their favour. The Act of 1870 has been held not to have altered this rule.

The Apportionment Act 1870 extends to Scotland and Ireland (but see IRELAND). It has been followed in many of the British colonies (Burge, Foreign and Colonial Laws, iv., Pt. II. by Bewes, 62o).

An equitable apportionment apart from statute law arises, also, where property is bequeathed on trust to pay the income to a tenant for life, and the reversion to others, and the realisation of the property in the form of a fund capable of producing income is postponed for the benefit of the estate. In such cases there is an ultimate apportionment between the persons entitled to the income and those entitled to the capital of the accumulations for the period of such postponement.

See Stroud, Jud. Diet., s.v. "Apportion"; Bouvier, Law Dict., s.v. "Apportionment" ; Ruling Cases, tit. "Apportionment" ; Foa, Landlord and Tenant (6th ed., 1924) ; Williams, Real Property (1926).

The term Apportionment is used in the United States to indi cate the obligation of Congress to re-assign among the states the numbers of members of the House of Representatives to which they are entitled following each decennial census. Such an ap portionment was not made on the basis of the census of 1920, being the first time Congress so failed to act following a census. It also is used to indicate the action of state legislatures in districting and re-districting congressional, legislative, judicial and other seats and of city councils and commissions in taking similar action on local offices. Often the term re-apportion is used, to distinguish from the apportionment already in effect.