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 a benefit to other land or it may exist in gross (i.e., without having a dominant tenement).
An instrument creating a profit à prendre has limited enforceability unless it indicates the land which is subject to the burden and, where it is expressed to benefit land, the land to which the benefit is appurtenant: see section 88AA(1) Conveyancing Act 1919.
A profit à prendre may exist in perpetuity or for a specified number of years and may be varied in the same manner as an easement. See Variation of easements.
NOTE: A forestry right is deemed to be a profit à prendre: see section 88AB Conveyancing Act 1919.
Examples of profit à prendres 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.
Torrens Title land
A profit à prendre may be created over Torrens Title land by section 88B Conveyancing Act 1919 (see below) or by inclusion in a transfer, lease (see 47(2)-(4) Real Property Act 1900), mortgage (see 56(4)-(6) Real Property Act 1900) or resumption.
A profit à prendre or forestry right can be created by a Transfer Creating a Profit à Prendre form 01TH and by a Transfer Creating a Forestry Right form 01TH respectively.
If a profit à prendre is to be created at the same time when land is being transferred, then a Transfer Including Easement form 01TE is to be used and amended appropriately.
If a profit à prendre is to be created at the same time when land is being leased or mortgage, then the appropriate lease (Lease form 07L) or mortgage form is to be used and amended appropriately. In all cases, the dealing form should be amended to reflect that it includes a profit à prendre and should clearly set out the parties comprising the dominant and servient tenements.
Where the dominant tenement and servient tenement parcels of land in a profit à prendre are owned by the same registered proprietor, the appropriate form for lodgment is the Transfer Granting Easement Over Own Land form 01TO. See section 46A Real Property Act 1900.
Creation under section 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. In this case the section 88B 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 of the section 88B instrument.
If it is intended to create a profit à prendre over 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'.
NOTE: Only a profit à prendre without a dominant tenement (ie a profit à prendre in gross) may be transferred by lodgment of a Transfer of a Profit a Prendre or Forestry Right form 01TI. Where the profit à prendre has a dominant tenement, the ownership may only be altered by a change of ownership of the dominant tenement title.
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.
Torrens Title land
In the case of Torrens Title land, a profit à prendre may be released or extinguished by:
- termination of the lease or mortgage which created the profit à prendre
- expiry of the term of the profit à prendre Request form 11R or
- resumption of the servient tenement
The signature and consent of all parties relating to the dominant tenement should be furnished.
NOTE: A profit à prendre may also be extinguished or modified by Court Order pursuant to section 89 Conveyancing Act 1919.
All NSW legislation can be accessed at www.legislation.nsw.gov.au/
Publication Date: June 2025