In today’s ever-evolving legal landscape, it can be hard for a landowner to keep track of the things they need to know for the effective management of their land. One other thing to add to that ever-growing list is the lesser-known private rights of profits à prendre.
What are profits à prendre?
Deriving from the French term meaning “profit to be taken”, a profits à prendre is a right to take something from another person’s land. The thing taken must be either part of the land itself and can be created by the removal of part of the land i.e. by gathering peat, timber, or anything else growing on it, (such as crops), or wildlife killed on it by way of fishing or shooting for example.
It is important to note that the thing taken must be part of the soil of the land or produce of the land and must be capable of ownership. For example, the right to “hunt fish and fowl” gives you the right to take the fish or bird from the land and the fish or bird is then capable of being owned when killed. However walking onto neighbouring land to simply take water from a natural spring passing through the land is not a profit because water flows naturally and is not considered a part of the soil nor as produce of it. If the water was stored by the landowner in a tank after being drawn from a stream or a spring however, then this may be a profit, however it is always best to check with a legal professional on this point.
There are different types of profits. They can either be enjoyed solely by individuals (several profit) to the exclusion of others (even the landowner subject to the profit) or have multiple beneficiaries (profit in common). The two most common types are “appurtenant” and “in gross”. An appurtenant profit is exclusively available to the owner of a separate piece of land, it cannot exist independently from the ownership of that land. An example of this is the right to graze animals over your neighbour’s land from your land. A profit in gross on the other hand, is detached from the land ownership. For example, a person might be able to collect timber or extract mineral and does not need to own a particular piece of land to exercise that extraction. It exists in its own right and can be sold, purchased, assigned or transferred separately from the land over which the right arises.
Profits are similar to easements, but there are important differences. Easements only confer a right to use land in a particular manner be it a right of way over the land, or access to services of utilities which service your property. A profit on the other hand, confers more than a mere limited right over someone’s land; it is a right to physically take something from the land and become the owner of that thing taken.
How are they created?
Profits can be created in several ways. They can be expressly granted by agreement. Alternatively, they can arise through statute or prescription (wherein the right is established through prolonged continuous use). Different profits can be granted over the same land to take different things, or to take the same thing at different times; therefore, there may be more than one profit in gross affecting the same land. The duration of a profit varies and can last for weeks, months or an entire lifetime.
Why do I need to be aware of profits à prendre?
It can be difficult to identify whether a piece of land that you intend to buy or already own is subject to a profit. They are not always registered at the Land Registry and they might not be visible on a site inspection if they happen to not being used that day. For example, the person with a right to hunt deer at any point of the year might only do so on a handful of occasions each year.
It is possible to buy a parcel of land that is subject to a profit which the buyer then cannot terminate and that could have consequences for the intended use of the land. For example, in 2012 in Preston Patrick in Cumbria, on discovering the Lord had inherited the rights of “hunting, hawking, fishing and fowling” first created in 1773, the Lord decided he would like to exercise them. Despite the fact they had not been exercised for over 200 years, the rights still existed and he was allowed to exercise them.
A buyer must therefore have a comprehensive understanding of the rights and obligations that apply to their intended site. To do this, they should raise questions of the seller. As a landowner (and potential seller) you will need to respond to these enquiries of the potential buyer and so, should carry out regular inspections to have a thorough knowledge of the land you are intending to sell.
There are strategic implications of profits. Profits hold the potential to unlock hidden value. Buying or selling a profit can be a smart investment opportunity and landowners can strategically leverage these rights (with the right legal advice) to ultimately optimise the use and worth of their land.