Profit à prendre and Forestry Rights

Profit à prendre

A profit à prendre is a right to the produce or soil of another's land. A profit à prendre, usually created by or with a transfer:

  • may be created for a specified period of time
  • may or may not have an appurtenant tenement, i.e. land gaining the benefit of the profit a prendre and
  • may be created by a statutory authority in gross in the same manner as an easement in gross.

Profits à prendre may be created where the dominant tenement and the servient tenement are Torrens Title land and are held by the same registered proprietor, see s46A Real Property Act 1900. A Transfer granting easement etc over own land, form 01TO, may be used where the profit à prendre affects all or part of the servient tenement. Where the profit à prendre affects part of the servient tenement, the part affected must be defined in a plan – refer to SM99.

The party benefiting from a profit à prendre in gross may transfer the profit à prendre.

A profit à prendre noted on the Register has no effect on the registration of dealings. It does not have to be noted in the Encumbrances, nor is the consent of the party benefiting from the profit à prendre required.

A profit à prendre will be removed from the Register on registration of any dealing after the expiry date.

A profit à prendre may be released by the party having the benefit of the profit à prendre, or otherwise as stated in the instrument creating the profit à prendre. A Transfer Releasing Easement form 01TR, suitably modified, or a Request form 11R may be used.

See Baalman and Wells, Land Titles Office Practice, Lawbook Co. 2001 [475.700].

Forestry rights

A forestry right is a form of profit à prendre. The forestry right may involve the growing, harvesting etc of timber; and/or consist of carbon sequestration rights (related to greenhouse gas emission control). A forestry right, usually created by or with a transfer:

  • may be created for a specified period of time
  • may or may not have an appurtenant tenement, i.e. land gaining the benefit of the forestry rights and
  • may be created by a statutory authority in gross in the same manner as an easement in gross.

Forestry rights may be created where the dominant tenement and the servient tenement are Torrens Title land and are held by the same registered proprietor. A Transfer granting easement etc over own land, form 01TO, may be used where the forestry right affects all or part of the servient tenement. Where the Forestry rights affect part of the servient tenement, the part affected must be defined in a plan – refer to SM99.

The party benefiting from a forestry right in gross may transfer the right.

A forestry right noted on the Register has no effect on the registration of dealings. It does not have to be noted in the Encumbrances, nor is the consent of the party benefiting from the forestry right required.

A forestry right will be removed from the Register on registration of any dealing after the expiry date.

A forestry right may be released by the party having the benefit of the right, or otherwise as stated in the instrument creating the right. A Transfer Releasing Easement, form 01TR, suitably modified, or a Request form 11R may be used.

See Baalman and Wells, Land Titles Office Practice, Lawbook Co. 2001 [475.800].