Profit à prendre

A profit à prendre is a right to take from the land owned by another person part of the natural produce grown on that land or part of the soil, earth or rock comprising the land. Like an easement a profit à prendre may be enjoyed as an appurtenance to other land or it may exist in gross. An instrument creating a profit à prendre has limited enforceability unless it indicates the land which is subject to the burden and the land to which the benefit is appurtenant see s.88AA Conveyancing Act 1919.

  • A profit à prendre may exist in perpetuity or for a specified number of years.
  • A profit à prendre may be varied in the same manner as an easement.
  • A forestry right is deemed to be a profit à prendre see s.88AB Conveyancing Act 1919.

Examples of profit à prendre include rights to:

  • graze stock
  • plant and harvest crops
  • quarry stone, sand or gravel, or
  • take timber.

Creation of a profit à prendre

Old System land

A profit à prendre may be created over Old System land by deed, by implied grant or reservation, by prescription or by Section 88B Conveyancing Act 1919.

Real Property (Torrens Title) land

A profit à prendre may be created over Torrens title land by Section 88B Conveyancing Act 1919 or by inclusion in a transfer, lease or mortgage or resumption. The dealing form should be amended to reflect that it is a profit à prendre and should clearly set out the parties comprising the dominant and servient tenements.

Creation under s.88B Conveyancing Act 1919

A profit à prendre may also be created over land under any title system by the registration of a plan under Section 88B Conveyancing Act 1919 see s.88B(2). In this case the instrument accompanying the plan must clearly indicate that is intended to create a profit à prendre with the terms and conditions set out in Part 2.

If it is intended to create a profit à prendre over the part of an existing parcel it will be necessary to define the affected site in a suitable plan. The plan may be either:

  • a plan of survey registered as a deposited plan, or
  • a compiled plan:
    • annexed to a dealing or
    • lodged as a deposited plan.

In this case the normal requirements for compiled plans will apply.

Note  Where the plan is to be a deposited plan, it may be lodged at the same time as the dealing or may precede lodgment of the dealing. If the deposited plan precedes the dealing the heading in the plan should refer to 'Plan of proposed profit à prendre'.

Release of a profit à prendre

Old System land

In the case of Old System land a profit à prendre may, like an easement, be extinguished by an express or implied release, by operation of law or by resumption action.

Real Property (Torrens Title) land

In the case of Torrens title land, a profit à prendre may be extinguished by:

express intention in a transfer,

  • registration of a plan with reference to the release set out in:
    • Part 1A of the section 88B instrument (PDF 28 KB) available from this website, and
    • the statement of intention panel on the administration sheet of the plan
  • termination of the lease or mortgage creating the profit à prendre
  • expiry of the term of the profit à prendre Request form 11R (PDF 131 KB)
  • abandonment Request form 11R (PDF 131 KB), or
  • resumption of the servient tenement.

The signature and consent of all parties relating to the dominant tenement should be furnished.