Land rights and the importance of ‘profits a prendre’

For any landowner, effective land management is an ongoing consideration. Many of the broader public issues surrounding land management feature heavily in the press, for example, the recent summary of responses to Defra’s Environmental Land Management scheme.

With the spotlight on the broader issues, landowners should remember to consider the equally important private rights issues that can impact them as part of their day-to-day land management strategy.

What rights and obligations affect my land?

The rights and obligations relating to land use and ownership are complex. The Law Commission has previously identified that more than three quarters of all freehold properties are affected by one or more rights, including easements, covenants and profits a prendre. To differentiate:

• An easement relates to a right to use another person’s land e.g. a right of way.
• A covenant is a contractual promise to do or not do something upon the land e.g. not to build on the land.
• Profits a prendre is the right to take something from another person’s land that can be owned e.g. the soil, timber, fish.

Profits a prendre are less well known than easements and covenants, but they are just as important. There are different types of profits a prendre, dependant on the ownership of the land and who enjoys the profit – this can be a sole person (excluding the landowner) or a number of people including the landowner.

The latter, known as a ‘profit in common’, should not be confused with rights of common for the purposes of the Commons Registration Act 1965, which relates to common rather than private land.

Rights of common are likely to be one of the following, as listed by the Land Registry in its Practice Guide 16:

• Rights of pasture (including cattlegates or beastgates – rights to pasture a specified number of animals)
• Rights of pannage (to turn out pigs to eat acorns etc)
• Rights of turbary (turf cutting)
• Rights of estover (to collect wood)
• Rights of piscary (fishing)
• Rights of common in the soil (to take stone, gravel etc).

How is a profit a prendre created?

Broadly speaking, profits a prendre can be created expressly, by agreement between the land owner and the recipient of the profit, or by prescription, where the right is acquired through long usage. Where the right being claimed is through prescription, a similar test such as the one relating to easements is used. Evidence will need to be produced to the Land Registry which establishes that:

• there was a period of at least 20 years’ use;
• the use of the profit was enjoyed for 20 years by the person claiming the profit, or by their predecessors. However, the person claiming the profit cannot take into account any time during which a stranger had exercised the profit prior to them;
• the right was exercised without force, secrecy or permission; and
• the right claimed is not a customary right.

The rights can be given for all time, or by way of a lease for a certain duration or for a specified period, for example, certain weeks or months each year.

Why do I need to be aware of profits a prendre?

At its most simplest, having clear oversight of what is happening on your land means that you can ensure that it is managed correctly and in line with regulations.

Taking stock of the rights which you have given over your land or are exercising over someone else’s land will enable you to ensure that these rights are properly documented and that all Land Registry requirements have been fully complied with.

From a strategic perspective, it is worth considering the use of profits a prendre for financial gain. Selling the rights to your land can be a worthwhile investment – but this will depend on the type of profit a prendre as mentioned earlier.

Similarly, it is important to keep up to date with what is happening on your land so that you don’t unintentionally find yourself in a situation where profits a prendre are created by prescription, if this is something you want to avoid.

Used properly, profits a prendre can be an important and sometimes profitable part of your business strategy. However, the law governing them is ancient and complex and the type of profit a prendre is dependent on a number of different criteria. Therefore, before making any decisions about land rights, you should always seek professional legal advice.

This article was first published in the March 2021 edition of South East Farmer.

This content is correct at time of publication