Characteristics and Termination of Profit-a-Prendre

Profit-à-prendre means “right of taking”. With respect to real property, the term means a non-possessory interest in certain areas of land, by virtue of which the holder acquires the right to obtain natural resources which comprise petroleum, timber, minerals, game, etc. from the land of another person. Because for the purpose of using such natural resources the recipient, or donee, has to be granted access to the land in question, each profit-à-prendrecontains an implication of easement for the profit owner, so that he can enter the other person’s land and collect the resources that he is entitled to.

Similarly to easements, profits of this type can be created expressly by means of an agreement between the owner of the property, as one party, and the owner of the profit, as the other party. Profits can also be created by means of prescription, which means that the profit owner has enabled open use of the specified land in the course of a continuous, interrupted statutory period.

When the profit is owned by the owner of adjacent land, and it is tied to the use of that land, then it is called appurtenant profit, and it can only be used by the owner of the adjacent property. Even in the event of change of hands of the land on which the profit is instituted, the property recorded profit remains.

When the profit is of the in gross type, then it can be assigned, or it can be otherwise transferred by the owner. In court, profits are construed as in gross profits unless it is expressly pointed out that they are appurtenant profits. It follows that profits by prescription shall be typically profits in gross. Similar to the commercial easement in gross, profits in gross can be completely alienable. They can also be exclusive, which means that the owner of the profit is guaranteed that no other persons will be afforded the rights to collect the resources specified from the land in question.

The termination of such profits can be effected in a number of means, including the following:

  • Merger: in such cases, if the profit owner acquires the land to which the profit applies, then there is no longer the need for separate rights to use the resources of the land
  • Release: in such cases the profit owner can prepare a contract in order to surrender the profit to the land owner
  • Abandonment: in such cases the profit owner ceases the use of the profit for a sufficient time period, so that a reasonable owner is led to believe that this profit will not be used any more
  • Misuse: in such cases profits are used in such a manner as to pose a burden on the servient estates, and for that reason such profits are terminated.

To sum up, the profit-à-prendre – deed of grant, is used to denote the privilege or right of a person to enter the land belonging to another person, to take and use some natural resources of value. The instances of use can comprise fishing, logging, mining, harvesting, pasturing, etc.