Profits a prendre

A profit a prendre is a right to take from another person’s land something that is part of the soil or is on the soil and is the property of the landowner. The most common examples are sporting rights such as shooting and fishing, but important rights also exist in relation to minerals, crops or animals.

Since 13 October 2003 (when Land Registration Act 2002 came into force) it has been possible to register a profit a prendre 'in gross' with its own title.

A profit a prendre is an interest in land. It can be:

• granted by deed

• acquired by common law prescription, or

• under the doctrine of lost modern grant

Statutory prescription is not available as the Prescription Act 1832 does not apply to profits a prendre.

Registration

To be registered with its own title a profit a prendre must:

• exist in its own right and not be annexed to the ownership of other land

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

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

• be in respect of something that can be owned (eg a right to take water from a spring or pump, or the right to water cattle at a pond may be an easement but cannot be a profit a prendre. Water, when taken, is not owned by anyone; nor is it part of the soil)

Discontinuous leasehold titles

Discontinuous leases of profits a prendre in gross trigger first registration only if at the date of application more than seven years remains of the term.

If the lease is granted for one month each year more than 84 months must remain unexpired.

Protection of legal profits a prendre

If it is not registered with its own title then a profit a prendre must be protected against purchasers of the burdened land. A legal profit a prendre will be an overriding interest. However, when granted out of a registered title after 12 October 2003 a profit will become a legal rather than an equitable interest only when protected by notice in the charges register of the burdened land. In practice, therefore, protection depends on the entry of notice.

Where a profit a prendre is granted out of a registered title it is a 'registered disposition' and so the correct application to the Land Registry is form AP1.

Where the burdened land is unregistered best practice is to lodge a caution against first registration. This ensures notification when the burdened land comes up for registration so that the owner of the profit a prendre can check that the correct register entries are made.

SDLT and VAT

A profit a prendre is an interest in land and, for the purposes of SDLT, is a 'chargeable interest'. Where a profit a prendre is granted for consideration, SDLT will be payable if the consideration exceeds the relevant threshold.

VAT notice 742 (land and buildings) sets out detailed rules for ascertaining whether a profit a prendre such as shooting rights will be a standard rated supply for VAT purposes. Those rules should be checked in each case.