Practice Guide 16 – Profits a prendre

Updated: February 2013

Update

This edition of the guide replaces the October 2011 edition. Amendments have been made to sections 5, 7 and 9 to clarify the fees payable, the land charges searches required and the documentary evidence required to support an application.

Scope of this guide

This guide gives advice regarding all aspects of the registration of profits a prendre in gross. It is aimed at conveyancers and you should interpret references to ‘you’ accordingly. Land Registry staff will also refer to it.

1 Abbreviations

In this guide:

‘the 1965 Act’ means the Commons Registration Act 1965

‘LRA 2002’ means the Land Registration Act 2002.

2 Introduction

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

The most common examples are sporting rights such as shooting and fishing. Where these exist in gross they are interests that can be bought and sold separately from the ownership of the land itself.

A profit a prendre in gross is an interest in land. It can be granted by deed or acquired by common law prescription or under the doctrine of lost modern grant. Prior to the LRA 2002, profits a prendre in gross were not capable of registration separately from land. From 13 October 2003, however, they can be registered.

3 What profits a prendre can be registered?

Examples of profits a prendre are rights to take fish, game, vegetables, peat, fern and thorns, but there are many others. Profits a prendre are usually rights to take something on the land itself or the wild animals existing on it.

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 title affecting the same land.

To be capable of registration under its own title, a profit a prendre must:

• exist in its own right and not be annexed to the ownership of other land as a 'profit appurtenant' that is, it must exist ‘in gross’

• be held in fee simple or for a term of years with more than seven years unexpired

• be granted by deed, acquired by prescription at common law or acquired under the doctrine of lost modern grant

• be in respect of something which is capable of ownership (so, for example, it cannot be in respect of water).

3.1 Discontinuous leasehold titles

Discontinuous leases of profits a prendre in gross may only be the subject of first registration if at the date of the application more than seven years of the term are unexpired it therefore appears that if the right is granted for one month a year, more than 84 months must remain unexpired, and so on. S.3(4), LRA 2002 specifically relates to an estate in land, and, therefore, excludes profits a prendre in gross from the provisions for discontinuous leases made by that section.

4 Distinguishing a profit a prendre from other types of right

Easements	The benefit of an easement cannot exist independently of land. It is a right that the owner of one piece of land has over another person’s land. The servient owner grants a right to do something (or refrains from doing something themselves) on their land which benefits the dominant land. Easements can be acquired under the provisions of the Prescription Act 1832.	Profits a prendre in gross	The benefit of a profit a prendre in gross exists independently of land. It is a right to take something from someone else’s land. A profit a prendre in gross cannot be acquired under the provisions of the Prescription Act 1832. A profit a prendre in gross is an interest in land. A profit a prendre in gross arises by grant or prescription, which presupposes a grant that cannot now be produced.
Licences	A licence does not create an interest in land. It is a personal arrangement, which amounts to a permission to do something that would otherwise be a trespass.
Customary rights	Customary rights are rights enjoyed by custom by some or all of the inhabitants of a particular locality. Being owned by a fluctuating group of people, they are incapable of being the subject of a grant. (A customary right cannot be registered either as a separate title or as appurtenant to other land. However, a notice can be entered in the register of land subject to a customary right. The application should be made on form AN1 or UN1. See Practice Guide 19 – Notices, restrictions and the protection of third party interests in the register for further details about notices.)

5 Making an application for first registration

5.1 Documents required

When applying to register a profit a prendre in gross where either:

• the grant was out of unregistered land

• the grant was out of registered land and made before 13 October 2003

you must lodge the following documents.

• Form FR1.

• Sufficient details to accurately identify the land affected by the profit a prendre in gross on the current Ordnance Survey map.

• Documents proving title to the profit a prendre in gross (see section 9 Documentary evidence of title). If the grant was out of registered land, we will still need to see evidence of the devolution of title to the applicant, if not the original grantee.

• If documents of title are not available, evidence will be required 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 must be supplied.

• 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 by way of statutory declaration or statement of truth of the facts relied on must be supplied (see section 10 Evidence of title by statutory declaration or statement of truth).

• The consents of all interested parties affected by the profit a prendre in gross including unregistered owners (see section 11 Consents to registration).

• Any necessary search under the Commons Registration Act 1965 (see section 6 Commons Registration Act 1965).

• Any necessary search under the Land Charges Act 1972 (see section 7 Searches in the Land Charges Department).

• Certificate of value of the interest (unless a recent transaction states consideration).

• Fee (payable under the current Land Registration Fee Order) based on either:

Note: 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.)

• Full details in form DI of any other unregistered interests affecting the profit a prendre in gross as specified in Schedule 1, LRA 2002 (see Practice Guide 15 – Overriding interests and their disclosure).

If the profit a prendre in gross was granted out of registered land on or after 13 October 2003, see section 13 Profits a prendre in gross granted out of a registered estate on or after 13 October 2003.

6 Commons Registration Act 1965

‘Rights of common’ over land capable of being registered under the 1965 Act cannot be registered under the LRA 2002 (s.1(1) of the 1965 Act). Nor can the burden of such rights be noted in the register of land subject to them (s.33(d), LRA 2002).

Land is capable of being registered under the 1965 Act if it is subject to rights of common.

The classic definition of a right of common is a right, which one or more persons may have, to take or use some portion of that which another person’s soil naturally produces.

Individual rights of common include:

• rights of pasture, and (by statutory definition) cattlegates and beastgates

• rights of turbary (turf cutting)

• rights of estover (right to collect wood)

• rights of piscary (right to fish in common with others)

• rights of common in the soil (right to take stone, gravel, and so on).

A right of common is, therefore, a form of profit a prendre, and some rights of common will be profits a prendre in gross. However, not all profits a prendre in gross will be rights of common. In particular, the definition of rights of common for the purpose of the 1965 Act excludes leasehold rights.

If you make an application to Land Registry to register freehold rights of common over land capable of being registered under the 1965 Act, we will not be able to accept it.

A search under the 1965 Act should accompany every application for the registration of a profit a prendre in gross, unless:

• the area affected by the profit a prendre in gross falls within one of the areas exempted from the effect of the 1965 Act. These are:

• the rights of common are held for a term of years or from year to year.

7 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 of grant is over 15 years old, whether to the applicant or to a predecessor of the applicant, a search is required against the grantee to that deed. Where the deed is less than 15 years old searches are also required against the grantor and any predecessors back to a good root of title. In all cases a search is also required against all successors in title from the deed of grant including against the applicant from the date of acquisition to the date of the application.

8 Application for a restriction in Form A

Where a person or persons apply to be registered as proprietor(s) of a profit a prendre in gross and a sole proprietor or survivor of joint proprietors will not be able to give a valid receipt for capital money, application must be made for entry of a restriction in Form A (rr.94(2) and (3), Land Registration Rules 2003). The application should be made in form RX1 or where a Land Registry form of transfer has been used for the disposition to the applicant, in that form.

9 Documentary evidence of title

9.1 The profit a prendre in gross

You should send 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. All these documents must be listed on form DL under r.24(1)(c), LRR 2003.

We need evidence of the title of the grantor to grant the profit and of the title to any easement granted as appurtenant to the profit.

For either freehold or leasehold profits you should lodge:

• a good root of title that is at least 15 years old to the underlying freehold title to the servient land
• devolution of title of the underlying freehold to the grantor, and
• devolution of title of the profit to the applicant.

In addition if the grantor’s title is leasehold you should also lodge:

• full evidence of title to all intervening leasehold titles (whether of the land or profits) back to the freehold title to the servient land.

9.2 Where full documentary evidence is not available

It may be possible on occasion to 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.

9.3 Available 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.

Ss.9 and 10, LRA 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 section 9.1 The profit a prendre in gross. The qualification will be tailored to the circumstances of the case and every application has to be considered on its merits.

Good leasehold title might be awarded where an applicant for a leasehold profit 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 s.10, LRA 2002) but does not confirm that there is underlying title to grant the lease.

Possessory title is not available for profits due to the combined effect of ss.9(5) and 10(6), LRA 2002.

9.4 Rights associated with the profit a prendre in gross

Rights which are effectively part of the profit a prendre in gross, for instance "the right to enter upon Blackacre and shoot game" will form part of the description of the profit a prendre in gross in the register. If they are not set out verbatim in the register a copy of the grant will be filed from which the nature of such rights can be established.

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. This will involve the service of notice on any landowner, other than the grantor of the profit a prendre in gross, whose land is affected by such easements, and they will be given the opportunity to object to the registration of easements which affect their title (see section 11.1 When Land Registry will serve notice).

10 Evidence of title by statutory declaration or statement of truth

If you are unable to provide the documentary title referred to above, you will need to provide evidence of the title, which will usually take the form of a statutory declaration or statement of truth (see Practice Guide 73 – Statements of truth).

This may be the case if either:

• documents of title have been lost

• the profit a prendre in gross has been acquired by common law prescription or under the doctrine of lost modern grant.

It is for the deponent to include in their declaration or statement all material facts within their knowledge. Land Registry 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, where documents of title have been lost, see Practice Guide 2 – First registration of title where deeds have been lost or destroyed for general advice on the information and evidence an application should include.

10.1 Extent

If you are making application to register a profit a prendre in gross without deeds, then it will be necessary for you to supply a plan based on the latest Ordnance Survey map, defining the extent affected by the profit a prendre in gross.

Exhibit this plan to the declaration.

10.2 Profit a prendre in gross acquired by lost modern grant or prescription

Claims to profits a prendre in gross by common law prescription or lost modern grant are rare. If you are making such an application, the accompanying statutory declaration or statement of truth must establish that:

• there was at all material times a capable grantor and a capable grantee

• the right claimed is not a customary right

• there has been a minimum period of user of 20 years

• the exercise of the profit a prendre in gross has been without force, without secrecy and without permission

• the grant of the profit a prendre in gross would not have been illegal.

The Prescription Act 1832 does not apply to profits a prendre in gross and Land Registry will, therefore, not consider applications making reference to this Act.

Note: The applicant must demonstrate his own enjoyment of the profit for the entire period (Lovett v Fairclough (1990) 61 P & CR 385 at 396).

11 Consents to registration

11.1 When Land Registry will serve notice

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

We will make a decision regarding whom to serve notice on 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 on 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.

11.2 Where 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.

11.3 Details of unregistered owners

If the burdened land, or any part of it, is unregistered, we require details of the current owners supported by evidence of their title. 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.

A legal profit a prendre in gross is an interest which overrides first registration. 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).

11.4 Disputes

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, Land Registry’s dispute procedure will apply and the matter will be referred to the Adjudicator to HM Land Registry under the provisions of the LRA 2002 (see Practice Guide 37 – Objections and disputes – A guide to Land Registry practice and procedures).

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

When all matters referred to in section 11 Consents to registration have been resolved, we will note the existence of the profit a prendre in gross in the charges register of affected registered titles.

There is no fee associated with noting the profit a prendre in gross on an affected servient title, as long this takes place as part of the application for first registration.

13 Profit a prendre in gross granted out of a registered estate on or after 13 October 2003

Any profit a prendre in gross granted out of a registered estate on or after 13 October 2003 must be registered to operate at law (s.27(2)(d), LRA 2002).

You must:

• apply using form AP1 (and form DI where appropriate)

• enclose the original grant (together with a copy if you want the original deed returned)

• include the appropriate Land Registry fee.

14 Subsequent dealings with registered profits a prendre in gross

14.1 Transfers and leases

The owner of a profit a prendre in gross may transfer or 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 is a registrable disposition, regardless of the length of the term.

14.2 Closure of title

Upon application for closure of a profit a prendre in gross title, it will be necessary to provide evidence that the profit a prendre in gross has been extinguished. This may occur by:

• statute

• release (express or implied)

• unity of ownership and possession.

You should make any such application on form AP1.

Where it considers it necessary to do so, Land Registry will serve notice of the closure on the registered proprietor and any other interested person before proceeding with the application for the closure of the title.

15 Enquiries and comments

Land Registry will not be able to give detailed consideration to your application in advance, but if you have a particular concern not covered by this guide, please contact Land Registry – see Contact details. If the problem is particularly complex, it may be better if you make your enquiry in writing.

If you have any comments or suggestions about our guides, please send them to:

Central Operations Group
Land Registry
Trafalgar House
1 Bedford Park
Croydon
CR0 2AQ

(DX 8888 Croydon 3)

You can obtain further copies of this and of all our guides free of charge from Customer Support (see Contact details) or you can download them from our website.