Profit-a-prendre

A profit (short for profit-à-prendre in Middle French for "right of taking"), in the law of real property, is a nonpossessory interest in land similar to the better-known easement, which gives the holder the right to take natural resources such as petroleum, minerals, timber, and wild game from the land of another. Indeed, because of the necessity of allowing access to the land so that resources may be gathered, every profit contains an implied easement for the owner of the profit to enter the other party's land for the purpose of collecting the resources permitted by the profit.


Creation

Like an easement, profits can be created expressly by an agreement between the property owner and the owner of the profit, or by prescription, where the owner of the profit has made "open and notorious" use of the land for a continuous and uninterrupted statutory period.

Types

Appurtenant. A profit can be appurtenant (owned by an adjacent landowner, and tied to the use of the adjacent land) or in gross. An appurtenant profit may only be used by the owner of the adjacent property. A properly recorded profit will remain even if the ownership of the land upon which the profit exists changes hands.

In Gross. By contrast, a profit in gross can be assigned or otherwise transferred by its owner. Courts will construe a profit as being in gross unless the profit is expressly designated as being appurtenant. Therefore, profits by prescription will virtually always be profits in gross. Like a commercial easement in gross, a profit in gross is completely alienable. Profits can also be exclusive (guaranteeing the owner of the profit that no other person will be given the right to collect the specified resources on the land).

Termination

Termination of a profit can occur by a number of means, including:

  • merger - if the owner of the profit acquires the land to which it applies, there is no longer any need for a separate right to take resources off it.
  • release - the owner of the profit can execute a contract to surrender the profit to the owner of the land.
  • abandonment - the owner of the profit ceases to make use of it for a sufficient length of time to lead a reasonable owner to believe that it will no longer be used.
  • misuse - if a profit is used in such a way that it places a burden on the servient estate, then it will be terminated.

Ireland

Under Irish law profits-à-prendre are governed by Part 8 of the 2009 Land Act.[1]

Notes

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