Creation In
English law, as a general rule,
profits à prendre may be created in five different ways: express grant, reservation, implied grant, prescription, and by statute. Depending on the type of
profit à prendre in question, there may be restrictions as to which methods of creation may be used.
Express grant and reservation Express grant The owner of an estate in land may expressly grant a
profit à prendre over their estate.
Reservation Where the owner of an estate in land sells part of their estate, but retains the other part, a
profit-à-prendre may be created by reservation. This is actually a re-grant made by the purchaser of the newly created estate in land from which the owner of the original estate in land may benefit. This process is commonly referred to as
reservation because the owner of the original estate in land has effectively reserved some of the rights they had previously enjoyed as owner of what is now part of the newly created estate in land. For example, the owner of
Blackacre, a
freehold estate, may wish to sell part of their land, but retain a right to fish in the river flowing through that part of the land. The owner of Blackacre may therefore create a new estate over the part of the land they wish to sell, but make its sale conditional on a purchaser granting a
profit à prendre to fish in the river from which the owner of Blackacre may benefit.
Formalities In order for a
profit à prendre created by express grant or reservation to take effect at law, it must be created by
deed. In order for a deed to be valid, the formalities set out in section 1 of the
Law of Property (Miscellaneous Provisions) Act 1989 must be satisfied. If a deed is not used, or if it is not valid, the
profit à prendre may only take effect in
equity.
Implied grant Law of Property Act 1925 Profits à prendre may be impliedly granted under section 62 of the
Law of Property Act 1925. which profits are not. which was defined as 1189 by the
Statute of Westminster I, an
act of the
English Parliament dating back to 1275. Given the difficulties in proving continuous use since 1189, the common law evolved to presume existence before 1189 provided the
profit à prendre has been used for a 20 years, although this presumption is rebuttable. Although it remains available, common law prescription has been largely superseded by the Prescription Act 1832 and the doctrine of lost modern grant. the prescription period is 60 years.
Extinguishment Express release Owners of a
profit à prendre may expressly release the servient tenement from the burden of the
profit à prendre. In order for express release to take effect at law, a deed must be executed by all of the beneficiaries; where a deed is not used, express release may only take effect in equity.
Merger Where the servient tenement is a freehold
reversion, and the dominant tenement a
leasehold, if the owner of the leasehold becomes the owner of the freehold reversion, a
profit à prendre over the freehold reversion annexed to the leasehold will become extinguished through merger.
Profits in common Profits in common grant a number of persons, including the owner of the servient tenement, the right to enjoy the benefits over the servient tenement.
Types Profits appurtenant The benefits of profits appurtenant are annexed to a dominant tenement. In order for a
profit à prendre to be classified as a profit appurtenant, the four requirements set out by the
Court of Appeal in
Re Ellenborough Park must be satisfied. Profits appurtenant may not be expressed to be unlimited; The majority of
profits à prendre in England and Wales are profits appurtenant.
Registration Profits appurtenant created over a registered servient tenement on or after 13 October 2003 (the date on which the relevant provisions of the
Land Registration Act 2002 came into force) must be substantively registered with
HM Land Registry in order to take effect at law. Unless and until substantive registration is completed, any such profit appurtenant may take effect in
equity only. Profits appurtenant created on or after 13 October 2003 over an unregistered servient tenement need not be substantively registered with HM Land Registry in order to take effect at law. Where a profit appurtenant is a right of common, it cannot be registered within the
land registry system, but will instead fall within the remit of the commons registration system. As of January 2021, the commons registration system is changing, with the
Commons Registration Act 1965 is gradually being repealed by the
Commons Act 2006.
Profits appendant In
feudal England, when a
lord of the manor granted an
enfeoff (freehold estate) over
arable land, a profit appendant was automatically created in favour of the enfeoff. A profit appendant enabled the enfeoffee (the person to whom the enfeoff was granted) to benefit from a right to graze horses and oxen (needed to
plough the arable land), and sheep and cows (needed to
manure the arable land), It is thought that profits appendant exist only in the form of commons of pasture, For the same reason, it is not possible for a profit
in gross to be created by necessity.
Registration Provided that the servient tenement is a freehold or leasehold with more than seven years remaining, profits
in gross created over that registered servient tenement on or after 13 October 2003 Nevertheless, some sources do consider profits
pur cause de vicinage to be rights of common proper. have generally held that profits
pur cause de vicinage cannot be registered as rights of common either. ==Ireland==