Property Disputes specialist Oliver Thorp considers the complex topic of profits à prendre and how they are created.
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Profits à prendre are less well known than other rights affecting land, such as easements or covenants, but are just as important. Unfortunately, it’s one of those areas of the law where it’s pretty much impossible to avoid legal terminology, but I’ll do my best to explain that as we go along.
The law relating to profit à prendre is complex, not just in terms of terminology, particularly if the right was acquired by prescription (see below). Taking early legal advice is therefore highly recommended.
What are Profits à prendre?
A profit à prendre is a right to enter and take something from another person’s land. Importantly, the thing taken must be capable of being owned. Typical examples are soil, peat, stone, grass, timber, fish or wildfowl, but it does not include water unless it’s contained in a tank or other receptacle. Contrast this with a right to use the land in some way, eg a right of way, which cannot be a profit à prendre.
Some profits à prendre are rights of common, which are treated differently and must therefore be distinguished.
Types of profit à prendre
A profit à prendre can either be:
- appurtenant, or
- in gross.
An appurtenant profit à prendre is a right attached to adjacent land, and the right can only be exercised by the owner of that adjacent land.
Conversely, a profit à prendre in gross is a right over a piece of land that exists entirely independently from ownership of the land. Therefore, a profit à prendre in gross can be bought, sold, assigned, or transferred separately from the land.
How are profits à prendre created?
In most cases, profits à prendre in gross are created either by:
- an express agreement between the owner of the land and the recipient of the right; or
- long use (referred to as a prescriptive right).
To acquire a profit à prendre through long use, you must satisfy a test similar to that applied when acquiring an easement. You require evidence that:
- there has been at least 20 years’ use by the person claiming the profit à prendre, or by their predecessors.
- the right is not a customary right;
- the right was exercised openly, without force, and without the landowner’s permission.
Must a profit à prendre be registered at the Land Registry?
In broad terms, registering a profit à prendre in gross is not compulsory if created:
- by prescription; or
- by an express agreement over unregistered land; or
- by an express agreement over registered land before 13 October 2003.
However, in most cases, it will be capable of registration unless it’s a right of common capable of registration under the Commons Registration Act 1965.
A profit à prendre in gross created by express grant over registered land on or after 13 October 2003 is registrable unless it’s a right of common capable of registration under the Commons Registration Act 1965. That means it will not take effect in law until it’s registered.