Profit – Real Property
Within real property law, profit is a nonpossessory interest within land, which is similar to the more commonly known easement. The term profit is a shortened version of profit-a-prendre, which means ‘right of taking’ in Middle French. When land contains a profit, it also implies an easement on the owner of said profit for entering the land of another party with the intention of gathering the permitted resources according to the profit. Natural resources can include minerals, petroleum, wild game, and timber, among other things.
Creation
As with an easement, profits are able to be created between two parties. The profit, expressly created when the parties involved develop an agreement between the profit owner and property owner. In addition, it is possible for a profit to be created by prescription, where the profit owner has legally made the property “open and notorious” for the usage of land with an uninterrupted and continuous statutory period.
Types of Profits
A profit is able to be owned by adjacent landowners, legally referred to as being appurtenant. Thus, with the profit the use of land is provided to the adjacent landowner. Another type of profit includes ‘in gross’, which is assignable or transferrable by the land owner.
Appurtenant
When profit on land is considered to be appurtenant, this means that the appurtenant profit is allowed to be used only by the adjacent property owner. In addition, when a profit has been recorded properly, it will continue to exist, even in the event of the land ownership which has a profit tied to it exchanges or transfers ownership between parties in the future.
In Gross
In comparison with appurtenant profit, profits are able to be assigned and designated as being ‘profit in gross’, which enables the profit to be transferred or assigned by the property owner. Unless a profit has been designated expressly during creation to be an appurtenant type profit, courts automatically consider the profit on a property to be in gross. What this means is, any profit by prescription to the property is always classified to be ‘in gross’.
Furthermore, profit in gross, as can be done with commercial easement in gross, is fully alienable. Therefore, under the property law, the land owner has the ability to sell a piece of the property or the property rights to another party, or otherwise transfer ownership between parties with a profit in gross affixed to the land.
Additionally, another benefit of profit in gross is the ability for the profit to be exclusive. Thus, the property owner is guaranteed by the profit that no other party will be provided the right of collecting the agreed upon resources from the land which the profit is affixed too.
Termination of Profit
There are various approaches for terminating a profit from the property it is affixed to, including:
Mergers
Under real property laws, a merger doctrine represents a proposition for conveyance of property contract merging with a deed of conveyance. Thus, guarantees stated within the contract and are not specifically defined within the property deed, will be extinguished upon conveyance of the deed to the purchaser of property.
What this means is, if the profit owner acquires land which the profit is affixed to, there’s no longer a necessary right for separating resources.
Release
The legal instrument of a legal release is an action of terminating the legal liability between two parties, the releasee and releasor. The legal release must be signed by the releasor, and in certain situations an oral legal release may be allowed. Common cases were legal releases are used include photography by photographers, by documentary filmmakers during film productions, and by music producers for radio.
In the situation of terminating a profit tied to a property, the profit owner is able to sign or execute a release contract that surrenders the specified profit tied to the land.
Abandonment
In legal terms, abandonment is an act of relinquishing, renunciation or giving up an interest, civil proceedings, a claim, privilege, appeal, right, or possession of property, specifically with intent of not reasserting or resuming said interest. For instance, intentional actions could be conducted in the form of a waiver or discontinuance document. However, the term abandonment has a broad range of meaning between various branches in law. Whereas, both statutory abandonment and common law abandonment of property might be recognized within common law jurisdictions.
In the situation of profits tied to the property, when the profit owner cease to conduct actions provided by the profit for collecting resources for a reasonable length of time, a property owner may be able to consider the profit agreement as abandoned and no longer being used.
Misuse
Another way that the profit tied to a property can be terminated, like with any contract agreement, is by the misuse of the agreement. Therefore, the property owner is able to terminate the profit agreement between the land owner and another party if the profit is utilized in a way that causes the servient estate any burdens not agreed upon.
For example, if the profit affixed to the property gives permission for another party to only collect a specific resource, the other party is legally able to collect only that resource from the property. However, if the third party is found to be collecting additional resources, or resources other than specified within the profit, the property owner has legal means of terminating the agreement.
Furthermore, unless otherwise stated within the profit, the individual or company permitted to collect resources from the property is the only one with access to the resources. If the permitted party is found to be allowing access to another party, this can be means for terminating the agreement.
Land and Conveyancing Law Reform Act 2009