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WHAT IS IT? A profit à prendre is a right to enter land owned by someone else and take something off the land. 247 For example, you might have a profit à prendre to harvest the timber on someone else's land. Go to: an example of a profit à prendre.
Profits à prendre came into existence historically regarding things like pastures shared between the owner and someone else, the right to fish in the owner's river, or the right to harvest wood. Although it is not very commonly used, a profit à prendre has potential in the conservation area because a landowner wanting to protect the old growth timber on his or her property, for example, could grant a profit à prendre to a conservation group with respect to that timber. The conservation organization would have the exclusive right to decide whether and what trees would be cut or not cut.
AN EXAMPLE. Landowners on Saltspring Island were planning to sell their property; but they were concerned to protect the trees on their land.
At the time it was not possible to write a conservation covenant in favour of the Islands Trust Fund, as it now is. So the owners granted a profit à prendre in favour of the Islands Trust Fund. The agreement containing the terms of the profit à prendre provided that the Trust Fund has the exclusive right to cut down, destroy, kill or remove trees from the land, except that the owners can take an allowable annual harvest. The Garry Oak trees are specifically protected from being cut down and there is a clause that says the Trust Fund can claim $20,000 from the landowner if a Garry Oak is cut in violation of the agreement.
Other terms in the agreement provide that if the land is subdivided, the profit à prendre is binding on subsequent owners proportionately.
The Island Trust Fund has liability insurance which covers any liability in connection with the profit à prendre.
POSSIBLE APPLICATIONS. The profit à prendre was designed to entitle someone who did not own the land to enter and take something. A profit à prendre in favour of a conservation organization could be designed to entitle someone who did not own the land to enter and take or not take — in effect, to enter and preserve.
There are no recorded Canadian cases where a court has considered a profit à prendre granted for conservation purposes. To be safe, a profit à prendre should be used only where the interest you want to protect is something that can be taken from the land: fish, timber, pasture, or something similar. Otherwise a court may construe the document as an easement and apply the much more restrictive rules governing easements.
However, even with that limitation it might be possible, for example, to protect spotted owls by granting a profit à prendre to a conservation organization for the harvest of timber. 248
LEGAL BASIS. A profit à prendre is a common law instrument. It is similar to a common law easement in that both give someone who is not the owner the right to enter the owner's land. The difference is that a profit à prendre gives the holder the right to enter the land and take something, whereas an easement is a right just to enter the land.
An owner can grant a profit à prendre to anyone — there is no requirement that the profit à prendre holder own adjacent property. Profits à prendre of this kind are called profits en gross. 249
A landowner can create a profit à prendre which permits someone else to share a resource of the land. When the profit à prendre is shared between the landowner and the profit à prendre holder, it is called a profit in common. Or, the landowner can grant a profit exclusively to someone else, which the landowner can then no longer use. If the landowner grants a profit à prendre exclusively to one other person, it is called a sole profit. If the land owner grants a profit à prendre to several other people, it is called a several profit. The landowner cannot share in a sole profit or a several profit.
HOW IS IT CREATED? A profit à prendre is created by the owner granting the profit à prendre to the profit à prendre holder in writing. 250 The landowner specifies exactly what the profit à prendre holder is allowed to enter the land to take. For example, a landowner might specify that the profit à prendre holder can harvest all of the cedar which grows on the land, and that the profit à prendre holder is entitled to build and maintain a road for the purpose of accessing and harvesting the timber.
A profit à prendre document describes how the resources of the land are going to be shared between the owner and the profit à prendre holder. It is designed to outlive the landowner, and perhaps even the profit à prendre holder. So in creating a profit à prendre it is essential to think through the potential conflicts between a landowner and a profit à prendre holder and write down exactly what the parties intend. Suppose a landowner grants to a conservation organization a profit à prendre with respect to the trees on a piece of property. The property is several wooded acres and the landowner lives in a house on the property. A few years down the road the landowner decides he or she would like to cut down some trees. Whether the landowner is allowed to do so should be considered in advance.
In order to protect the profit à prendre holder if the land is subsequently sold, the profit à prendre should be registered in the land title office.
HOW LONG CAN IT LAST? A profit à prendre can last indefinitely. 251 If an owner grants a profit à prendre to a conservation organization and then sells the property, the new owner will still have to abide by the terms of the profit à prendre.
The profit holder can sell, lease, give away, or bequeath 252 the profit à prendre to someone else.
WHO MONITORS AND MANAGES THE LAND? Since the profit à prendre holder gets the right to enter the land, and to take something from the land, the profit à prendre could be used to give a conservation organization some or all of the land management responsibilities in relation to the land, or in relation to the part of the land which the profit à prendre is designed to protect. For example, the profit à prendre might stipulate that the profit à prendre holder has the exclusive right to harvest the forest on the land, 253 the responsibility to maintain the forest according to good forest practices, and the right to enter the forest as necessary to do those things. If the profit à prendre holder is a conservation organization, the group would have the ability to manage the forest according to ecologically sound forest management practices, at the same time protecting the forest against anyone else who wanted to cut it down — even the landowner.
HOW CAN THE LAND BE PROTECTED OVER TIME? Once the owner has granted a profit à prendre, he or she must respect the terms of the profit à prendre. The profit à prendre holder can sue if the owner deals with the land in a way which takes away from the profit à prendre holder's rights. The profit à prendre holder can also sue anyone else who interferes with the profit à prendre.
Conversely, the profit à prendre holder must respect the rights of the owner. The owner can sue the profit à prendre holder if the profit à prendre holder interferes with the landowner's rights.
HOW IS IT TERMINATED? A profit à prendre may be terminated by the profit à prendre holder giving a written release to the landowner, which would be registered in the land title office.
A landowner may apply to have the profit à prendre terminated under section 31 of the Property Law Act. 254
247. Historically there were five types of profits à prendre depending on the subject matter of the profit. They were rights of pasture (where the taking is done by the mouths of the grazing animals); rights of piscary (to harvest the fish); rights of turbary (to cut turf or peat as fuel); rights of estover (to take wood necessary for furniture for a house); and a fifth, miscellaneous group referring to the taking and using of sand, gravel, stone, etc. A profit à prendre cannot generally be used to take minerals.
248. Spotted owls require a habitat of old growth timber in order to survive. The spotted owl "is a year-round resident of dense, old-growth coniferous forests in mountainous country from southwestern British Columbia to central Mexico." J.A., Burnett, et al., On the Brink: Endangered Species in Canada (Saskatoon: Western Producer Prairie Books, 1989) at 38.
249. A profit appurtenant is a profit between a landowner and an adjacent landowner.
250. Profits can be created other ways, but a creation in writing is the only way relevant to conservation purposes.
251. This does not offend the rule against perpetuities provided that the vesting of the profit happens immediately. Sections 18 and 19 of the Perpetuity Act govern profits à prendre which are not created by trust deed or will and which do not vest immediately.
252. Bequeath means to leave in a will.
253. This right would need to be defined sufficiently in the written document.
254. See Chapter 14 on Restrictive Covenants for a discussion of this section of the Property Law Act.
