Guidance

Practice guide 16: profits a prendre

Updated 27 August 2019

Applies to England and Wales

Please note that HM Land Registry’s practice guides are aimed primarily at solicitors and other conveyancers. They often deal with complex matters and use legal terms.

1. Profit a prendre - general points

1.1 Retention of documents submitted with applications

Original documents are normally only required if your application is a first registration.

A conveyancer may, however, make an application for first registration on the basis of certified copy deeds and documents only. For information about this see practice guide 1: first registration – Applications lodged by conveyancers – acceptance of certified copy deeds.

If your application is not a first registration, we will only need certified copies of deeds or documents you send to us with HM Land Registry applications. Once we have made a scanned copy of the documents you send to us they will be destroyed. This applies to both originals and certified copies.

However, any original copies of death certificates or grants of probate will continue to be returned.

1.2 Nature of a profit a prendre

A profit a prendre is a right to take something from another person’s land.

This could be part of the land itself, such as peat; something growing on it, such as timber or grass (which can be taken by the grazing of animals); or wildlife killed on it, for example by shooting or fishing.

The thing taken must be capable of ownership, so a right to use land in some way, or to take water from a natural feature, cannot be a profit.

1.3 A profit a prendre may be appurtenant or in gross

A profit a prendre appurtenant is a right the benefit of which is attached to a particular piece of land, in the same way as an easement. It cannot be registered with its own title and is not the subject of this guide.

A profit a prendre in gross is a right not attached to the ownership of any particular piece of land. The owner of the profit may not own any land at all and may dispose of the profit independently from any land they do own. A profit a prendre in gross may be substantively registered with its own title and this is the subject of this guide.

Alternatively, a profit a prendre in gross may be the subject of notice in the register of the affected land, without being registered with its own title or, if the affected land is not registered, the subject of a caution against first registration. For information on notices see practice guide 19: notices, restrictions and the protection of third party interests; for information on cautions against first registration see practice guide 3: cautions against first registration.

1.4 Creation

A profit a prendre in gross may be created by express grant (or reservation), by statute, or by prescription at common law or under the doctrine of lost modern grant. It cannot be acquired under the provisions of the Prescription Act 1832 (section 5 of which requires the right to have been enjoyed for the benefit of the claimant’s land).

Because different profits a prendre in gross may be granted over the same land to take different things, or to take the same thing at different times, there may be more than one profit a prendre in gross affecting the same land.

1.5 Rights of common

Some profits a prendre in gross are “rights of common” for the purposes of the Commons Registration Act 1965 (and the Commons Act 2006, which when fully in force will repeal the Commons Registration Act 1965).

Rights of common capable of registration under the Commons Registration Act 1965 cannot be registered under the Land Registration Act 2002 (section 1(1) of the Commons Registration Act 1965). Nor can the burden of such rights be noted in the register of the land affected (section 33(d) of the Land Registration Act 2002).

It is therefore necessary to establish whether a profit a prendre in gross is a right of common capable of registration under the Commons Registration Act 1965. Such a right may be created today (by express grant, statute or prescription) although most are of older origin. When section 6 of the Commons Act 2006 comes into force, a right of common will not be capable of creation by prescription, and will be capable of creation by express grant only if the benefit is attached to identifiable land, and so will not be a profit a prendre in gross.

Note: A profit a prendre in gross may be created by express grant (or reservation), by statute, or by prescription at common law or under the doctrine of lost modern grant. It cannot be acquired under the provisions of the Prescription Act 1832 (section 5 of which requires the right to have been enjoyed for the benefit of the claimant’s land).

Rights of common are not defined in the Commons Registration Act 1965 or the Commons Act 2006.

A profit a prendre enjoyed by a person to the exclusion of all others, including the owner of the land (unless they reserve the same right), is a “sole” or “several” profit. A profit a prendre enjoyed in common with a number of other persons, including the owner of the land, is a profit in common.

However, confusingly, rights of common for the purposes of the Commons Registration Act 1965 include rights of sole or several pasture, vesture or herbage.

Rights of common for the purposes of the Commons Registration Act 1965 are likely to be one of the following.

• 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)

However, they do not include:

• leasehold rights granted for a term of years or from year to year
• rights (freehold or leasehold) affecting land falling in one of the areas excepted from the effect of the Commons Registration Act 1965 (the New Forest, Epping Forest and the Forest of Dean)
• rights (freehold or leasehold) affecting land exempted from the Commons Registration Act 1965 by ministerial order

1.6 Registration of a profit a prendre in gross

Broadly speaking:

• a profit a prendre in gross created by express grant over unregistered land, or before 13 October 2003 over registered land, or arising by prescription, is not compulsorily registrable. However, it may be registered if it is held in fee simple or for a term of years of which more than 7 years remain unexpired, and is not a right of common capable of registration under the Commons Registration Act 1965

See Registration of a profit a prendre in gross granted over unregistered land (or out of an unregistered profit a prendre in gross), or granted over registered land before 13 October 2003, or acquired by prescription for more information

• a profit a prendre in gross created by express grant on or after 13 October 2003 over registered land is a registrable disposition, unless it is a right of common capable of registration under the Commons Registration Act 1965 (section 27(2)(d) of the Land Registration Act 2002). It will therefore not take effect at law until it is registered. To be registered with its own title the profit must be granted in fee simple or for a term of more than 7 years (paragraph 6 of Schedule 2 to the Land Registration Act 2002).

See Registration of a profit a prendre in gross granted out of a registered estate in land on or after 13 October 2003 for more information.

The term, or the number of years unexpired, may not be obvious where a leasehold profit a prendre in gross is ‘discontinuous’, that is, granted either:

• for specified days, weeks or months each year for a specified number of years
• for a specified number, or a maximum number, of days, weeks or months each year, but with the grantee free to choose which particular days, weeks or months, for a specified number of years

Where the lease is, for example, for one month (or a maximum of one month) a year for a period of 10 years, there is no clear authority on whether the term for the purposes of the Land Registration Act 2002 is 10 years, or only 10 months (10 x 1 month) and therefore whether the right is capable of being registered with its own title (section 3(4) of the Land Registration Act 2002 relates only to estates in land, and as a profit a prendre in gross is not an estate in land the provisions relating to discontinuous leases made by that section do not apply). It seems to us that the position may be as follows.

• Where the lease involves specific identified days, weeks or months of the year, the term for the purposes of the Land Registration Act 2002 is (in our example) 10 months only (See Cottage Holiday Associates Ltd v Customs and Excise Commrs [1983] 1 QB 735 at 740; a case concerned with a “time-share”), and so cannot be registered with its own title.
• Where the lease involves a number of days, weeks or months in the year with the grantee free to choose which, it can be substantively registered on a first registration application (see Vision Engineering Limited v Romilt Limited [2014] LRAD 2013 0276 (unreported)) but with a qualified title, the qualification being that registration is effective provided that, for the purposes of section 3(3) of the Land Registration Act 2002, the estate was granted for a term of which more than 7 years were unexpired at the date of the application. If the profit is granted over registered land, then it can be registered but with a note being added to the property register to the effect that the registration is only effective if, for the purposes of paragraph 6 of Schedule 2 to the Land Registration Act 2002, the estate was granted for a term exceeding 7 years from the date of creation.

2. Registration of a profit a prendre in gross granted over unregistered land (or out of an unregistered profit a prendre in gross), or granted over registered land before 13 October 2003, or acquired by prescription

(If the profit a prendre in gross was granted out of registered land on or after 13 October 2003, see Registration of a profit a prendre in gross granted out of a registered estate in land on or after 13 October 2003. If it was granted out of an existing registered profit title, see Dealings with registered profits a prendre in gross.)

2.1 Documents required for all applications

The applicant for registration of such a profit a prendre in gross should lodge:

• form FR1 accompanied by a list in duplicate in form DL of the supporting documents lodged
• sufficient details by plan or otherwise to clearly identify the land affected by the profit a prendre in gross on the current Ordnance Survey map
• full details in form DI of any other unregistered interests affecting the profit a prendre in gross as specified in Schedule 1 to the Land Registration Act 2002 (see practice guide 15: overriding interests and their disclosure
• a certificate of value of the interest (unless a recent transaction states a consideration)
• the fee (HM Land Registry: Registration Services fees) based on either:
  • the price paid in a recent transaction, or
  • the certificate of value of the interest being registered. A full scale 1 fee is payable on an application to register a profit a prendre in gross. Reduced scale 1 fees for voluntary registration of land do not apply to a profit a prendre in gross.
• a certified copy of the original deed granting the profit (or by which it was reserved)
• the devolution of title to the profit a prendre in gross to the applicant, if the applicant was not the original grantee
• documents proving title to the grant of any easement granted as appurtenant to the profit. An easement over other land can exist as appurtenant to a profit a prendre in gross. On first registration, the title to the profit a prendre in gross will be examined and appurtenant easements to which good title can be shown will be registered. We will serve notice on any landowner, other than the grantor of the profit a prendre in gross, whose land is affected by such easements if the easement is not already entered upon their registered title, and they will be given the opportunity to object to the registration of easements which affect their title
• all the deeds and documents relating to the title that the applicant has or can oblige the holder to produce, including opinions of counsel, abstracts of title, copies of documents, contracts for sale, requisitions, replies, searches and other documents relating to the title
• where a sole proprietor or survivor of joint proprietors will not be able to give a valid receipt for capital money, an application (either in form RX1 or in the prescribed form of transfer to the applicant) for the entry of a restriction in Form A (rule 94(2A) of the Land Registration Rules 2003)
• a search under the Commons Registration Act 1965, unless the application is to register a profit a prendre in gross held for a term of years or the land affected by the profit is exempt from the effect of that Act (see Profits a prendre – general points)

2.2 Additional documents required where the profit a prendre was granted over unregistered land or out of an unregistered profit a prendre in gross

Certified copies or examined abstracts showing:

• a good root of title to the underlying freehold title to the land affected by the profit that is at least 15 years old at the date of the application. This is usually a conveyance on sale to the grantor or a predecessor in title
• the devolution of that underlying freehold title to the grantor, if the good root conveyance was to a predecessor in title to the grantor rather than to the grantor themselves
• if the grantor’s title is itself leasehold, full evidence of title to that leasehold title and to any other intervening leasehold titles back to the freehold title to the land affected by the profit
• if the grantor’s title is itself an unregistered profit a prendre in gross, full evidence of title to the grantor’s profit back to the title to land out of which the grantor’s profit was granted and to that land back to the freehold title to the land affected by the profit

If the servient land affected by the profit, or any part of it, is unregistered at the date of the application, we will require details of the current owners of the unregistered servient land, supported by evidence of their documentary title – NOTE: The documentary title required would be similar to that required for first registration. This allows us to serve notice of the application on them where necessary and to be sure that we are serving it on the right people. Where the application is accompanied by unconditional consents from the owners, it allows us to satisfy ourselves that the consents have been given by the right people. Where it has not been possible to register a profit a prendre in gross because an unregistered owner cannot be identified, a caution against first registration may be applied for instead (see practice guide 3: cautions against first registration).

We may on occasion accept an application that is supported by evidence that falls short of these requirements – for example, where the profit is particularly old. Such an application should be accompanied by evidence to establish that the profit has been exercised up to the date of the application.

2.2.1 Searches in the Land Charges Department

You must submit a search in the Land Charges Department with any application for the registration of a profit a prendre in gross granted out of an unregistered estate.

Where the deed granting the profit is at least 15 years old, a search is required in respect of:

• the grantee in that deed, and
• all successors in title from the deed of grant to and including the applicant

Where the deed granting the profit is less than 15 years old, a search is required in respect of:

• the grantee in that deed
• all successors in title from the deed of grant to and including the applicant, and
• the grantor in that deed and all predecessors in title back to a good root of title at least 15 years old.

2.3 Additional documents required where the title deeds to the profit a prendre are not available

If documents of title are lost or otherwise not available, evidence by way of statutory declaration or statement of truth of what documents of title existed and what has become of them, as well as evidence of what those documents of title contained. Where copies, memorials or abstracts are available these should be supplied. Practice guide 2: first registration of title if deeds are lost or destroyed contains general advice for these circumstances. Practice guide 73; statements of truth provides information about the use of statements of truth.

If it is claimed that the profit a prendre in gross has been acquired by common law prescription or under the doctrine of lost modern grant, evidence of the facts relied on by way of statutory declaration or statement of truth.

It is for the person making the declaration or statement to include all material facts within their knowledge. We cannot give advice as to what a statutory declaration or statement of truth should say in any given case, nor can they be submitted for ‘approval’. However, the declaration or statement must establish that:

• there has been a minimum period of user of 20 years
• the applicant’s own enjoyment of the profit, or that of predecessors in title to the profit from whom the applicant has derived title by inheritance or assignment, has continued for the minimum period. The applicant cannot add their own period of use to that of a stranger who happened to exercise the right before them (Lovett v Fairclough (1990) 61 P & CR 385 at 399)
• the exercise of the profit a prendre in gross has been as of right (without force, secrecy or permission)
• there was at all material times a capable grantor and a capable grantee
• the right claimed is not a customary right (that is, a right enjoyed by custom by some or all of the inhabitants of a particular locality, which being a fluctuating group cannot have been granted a right)
• the right claimed is one which could have been lawfully granted

As the Prescription Act 1832 does not apply to profits a prendre in gross we will not consider applications relying on that Act.

2.4 Classes of title

The classes of title that are available for a registered profit a prendre in gross title are:

• absolute freehold
• qualified freehold
• absolute leasehold
• good leasehold
• qualified leasehold

Sections 9 and 10 of the Land Registration Act 2002 deal with class of title. We will generally consider granting a qualified title where there is some minor deficiency in the evidence of title produced or it fails to meet the title standards set out in Documents required for all applications. The qualification will be tailored to the circumstances of the case and every application has to be considered on its merits. In particular, fishing profits will generally be granted a qualified title, due to the fact that many of these types of profit a prendre in gross originate from a riparian presumption.

Good leasehold title might be granted where an applicant applies for it, or cannot produce evidence of the superior freehold title. The registration with good leasehold title thus denotes that the profit is marketable (to the standards set out in section 10 of the Land Registration Act 2002) but does not confirm that there is underlying title to grant the lease.

Possessory title is not available for profits due to the effect of sections 9(5) and 10(6) of the Land Registration Act 2002.

2.5 Notices and consents to registration

2.5.1 When we will serve notice

If the application to register the profit a prendre in gross is in order, we will serve formal notice of the application on affected parties.

We will decide upon whom to serve notice according to the circumstances of each individual case. We will generally serve notice even if a lesser class of title, such as qualified or good leasehold, is being considered. We will also consider serving notice in respect of a registered title that is affected in practice, even if there is a possibility of some intervening legal interest, such as an unregistered lease. We will thus usually serve notice on some or all of the following.

• The registered proprietor and chargee of an affected registered estate including any relevant leaseholders
• The owner and chargee of an affected unregistered estate
• The registered proprietor/owner of an estate affected by easements associated with the profit a prendre in gross

2.5.2 When notice is not required

Notice may not be necessary if either:

• the profit a prendre in gross is already noted in the relevant register of title(s)
• the application includes the unconditional consent of the proprietor(s) to make an entry regarding the profit a prendre in gross and the detailed wording of the proposed entry has been agreed in advance

2.5.3 Objections

In the event of an objection to registration of a profit a prendre in gross which is not groundless and which cannot be resolved between the parties, our dispute procedure will apply and the matter will be referred to the Land Registration division of the Property Chamber, First-tier Tribunal, under the provisions of the Land Registration Act 2002 (see practice guide 37: objections and disputes, a guide to HM Land Registry practice and procedures.

2.6 Noting the profit a prendre in gross on affected registered titles

If the application to register the profit a prendre in gross is completed, we will enter notice of it in the charges register of affected registered titles.

There is no separate fee for this if it is done as part of the application for first registration.

3. Registration of a profit a prendre in gross granted out of a registered estate in land on or after 13 October 2003

(If the profit a prendre in gross was granted out of registered land before 13 October 2003, see Registration of a profit a prendre in gross granted over unregistered land (or out of an unregistered profit a prendre in gross), or granted over registered land before 13 October 2003, or acquired by prescription. If it was granted out of an existing registered profit title, see Dealings with registered profits a prendre in gross.)

Any profit a prendre in gross granted out of a registered estate on or after 13 October 2003, other than a right of common capable of registration under the Commons Registration Act 1965 (see Profits a prendre – general points), must be registered to operate at law (section 27(2)(d) of the Land Registration Act 2002). Where the profit is leasehold (granted for a term of years) this is irrespective of the length of the term. The registration requirements, however, will depend on the length of the term.

To be registered with its own title, the profit must be granted in fee simple or for a term of more than 7 years (paragraph 6 of Schedule 2 to the Land Registration Act 2002). The grantee will be registered as proprietor of the profit title and notice will be entered in the charges register of the title to the affected land.

The applicant for registration should lodge:

• form AP1 (and form DI where appropriate)
• a certified copy of the original deed granting the profit
• the appropriate fee
• any consent or certificate required by a restriction on the grantor’s title to the affected land
• the consent of the chargee in respect of any registered or noted charge on the grantor’s title
• where a sole proprietor or survivor of joint proprietors of the profit title will not be able to give a valid receipt for capital money, an application (either in form RX1 or in the prescribed form of transfer to the applicant) for the entry of a restriction in Form A (rule 94(2A) of the Land Registration Rules 2003)

See Retention of documents submitted with applications regarding retention of documents submitted with applications.

If the profit a prendre in gross is for a term of 7 years or less, it cannot be registered with its own title but to meet the registration requirements application should be made in form AN1 or form UN1 for notice of it to be entered in the charges register of the title to the affected land (paragraph 7 of Schedule 2 to the Land Registration Act 2002).

4. Dealings with registered profits a prendre in gross

See Retention of documents submitted with applications regarding retention of documents submitted with applications.

4.1 Leases

The owner of a profit a prendre in gross may lease it in the usual way subject to any rule of law, express provision in the grant of the profit a prendre in gross or entry in the register to the contrary.

A lease of a registered profit a prendre in gross title is a registrable disposition (and so must be registered to operate at law) irrespective of the length of the term. The registration requirements, however, will depend on the length of the term.

To be registered with its own title, the profit must be granted in fee simple or for a term of more than 7 years (paragraph 6 of Schedule 2 to the Land Registration Act 2002). The grantee will be registered as proprietor of the new profit title and notice will be entered in the charges register of the profit title out of which the lease is granted.

The applicant for registration should lodge:

• form AP1 (and form DI where appropriate)
• a certified copy of the original lease
• the appropriate fee
• any consent or certificate required by a restriction on the grantor’s profit title
• the consent of the chargee in respect of any registered or noted charge on the grantor’s title
• where a sole proprietor or survivor of joint proprietors of the new profit title will not be able to give a valid receipt for capital money, an application (either in form RX1 or in the prescribed form of transfer to the applicant), for the entry of a restriction in Form A (rule 94(2A) of the Land Registration Rules 2003)

If the profit a prendre in gross is for a term of 7 years or less, it cannot be registered with its own title but to meet the registration requirements application should be made in form AN1 or form UN1 for notice of it to be entered in the charges register of the profit title out of which the lease is granted (paragraph 7 of Schedule 2 to the Land Registration Act 2002).

4.2 Transfers

The owner of a profit a prendre in gross may transfer it in the usual way subject to any rule of law, express provision in the grant of the profit a prendre in gross or entry in the register to the contrary.

Application should be made in the same way as for a transfer of registered land.

4.3 Closure of title

A profit a prendre in gross may be extinguished by:

• statute
• express release (by deed)
• abandonment, which requires both non-use and an intention to abandon
• unity of ownership and possession of the profit and the estate out of which it was granted
• exhaustion of the subject matter of the profit

An application to close a registered profit a prendre in gross title should be made on form AP1 accompanied by evidence to satisfy us that the profit has been extinguished.

We may serve notice of the application on the registered proprietor and any other interested person before completing it.

5. Things to remember

We only provide factual information and impartial advice about our procedures. Read more about the advice we give.