In property law, understanding the concepts of easements, profits à prendre, and covenants is essential for both property owners and legal professionals. These legal instruments define and regulate the rights and responsibilities associated with the use of land. This article provides an overview of each term, exploring their definitions, types, and implications. Pannu Lawyers provides this article as a general
information only and you should seek legal advice and must on rely on this article as substitute to legal advice.

Easements

An easement is a legal right granted to a person or entity to use a portion of someone else’s land for a specific purpose. Easements do not grant ownership of the land, but rather a right to use it in a certain way. There are several types of easements, including:

1. Appurtenant Easements

Appurtenant easements benefit a specific piece of land (the dominant tenement) and burden another piece of land (the servient tenement). For example, a driveway easement allows the owner of the dominant tenement to use a portion of the servient tenement’s land for access.

2. Easements in Gross

Easements in gross benefit an individual or entity rather than a specific parcel of land. These easements are often granted to utility companies for the installation and maintenance of power lines, water pipes, or other infrastructure.

3. Prescriptive Easements

A prescriptive easement is acquired through continuous, open, and notorious use of someone else’s land for a statutory period without the owner’s permission. This type of easement is similar to adverse possession. It only grants usage rights rather than ownership. A prescriptive easement cannot be created over Torrens title land.

4. Easements by Necessity

These easements arise when a piece of land is landlocked, and there is no access to a public road except through a neighbouring property. Easements by necessity ensure the landowner has access to their property.

Profits à Prendre

A profit à prendre (often shortened to “profit”) is a legal right to enter another person’s land and take natural resources from it. This can include the right to harvest timber, extract minerals, hunt game, or fish. Unlike easements, profits à prendre involve the removal of part of the land’s physical substance.

Types of Profits à Prendre:

1. Appurtenant Profits

These are attached to a particular piece of land and benefit its owner. For instance, a farmer might have an appurtenant profit to graze livestock on a neighbouring field.

2. Profits in Gross

Similar to easements in gross, these profits are granted to individuals or entities rather than being tied to a specific parcel of land. For example, a timber company might have a profit in gross to harvest trees from a forested area.

3. Covenants

Covenants are written agreements or promises contained in a deed or lease that stipulate certain uses or restrictions on the property. Covenants can be affirmative, requiring a property owner to perform specific actions, or restrictive, prohibiting certain actions.

Restrictive Covenants

These covenants limit what a property owner can do with their land. Common examples include restrictions on the height of buildings, the types of structures that can be built, or the use of the property (e.g., residential vs. commercial).

Affirmative Covenants

These covenants require the property owner to take certain actions, such as maintaining a fence, paying for shared amenities, or upkeeping landscaping.

Enforceability of Covenants:

Covenants can run with the land, meaning they bind not only the original parties to the covenant but also subsequent owners of the property. For a covenant to run with the land, it must meet certain legal requirements, including the intention to bind future owners and the existence of “privity of estate” (a mutual or successive relationship to the same property).

Conclusion

Easements, profits à prendre, and covenants are fundamental elements of property law that govern the use and enjoyment of land. Easements allow for specific uses of another’s property, profits à prendre permit the extraction of natural resources, and covenants impose obligations or restrictions on land use. Understanding these concepts is crucial for property owners, developers, and legal professionals to
navigate the complexities of land use and property rights effectively.

Pannu Lawyers are based in Blacktown. We have undertaken thousands of conveyancing transactions in NSW and are backed by more than 700 five-star reviews on Google. If you are buying and/or selling and looking for a property lawyer to assist you, then call our office on 02 9920 1787 to experience the difference.