Easements, Covenants, and Profits à Prendre: Rights Affecting Land

Easements, Covenants, and Profits à Prendre: Rights Affecting Land

Introduction

Ownership of land does not necessarily confer unrestricted freedom to use, develop, or enjoy it. Property rights frequently extend beyond the boundaries of the land itself, creating legal relationships between neighbouring properties and their respective owners. A person may own a house but have no right to cross an adjoining field without an easement. Another may own agricultural land but be legally restricted from constructing additional buildings because of a restrictive covenant. A third may possess the right to extract minerals, collect timber, graze animals, or take other natural resources from land belonging to someone else.

These arrangements form an important part of English and Welsh land law. They establish rights and obligations that affect how land may be used, transferred, developed, and enjoyed.

Three particularly important categories are easements, covenants, and profits à prendre. Although they may arise from similar property transactions, their legal nature and consequences are different.

An easement grants a right to use another person’s land for a particular purpose, such as passing over a private road, using a drainage system, or exercising a right of way. A covenant is a legally enforceable promise concerning land, which may restrict its use or impose certain obligations. A profit à prendre grants a right to enter another person’s land and take something from it, such as timber, minerals, fish, or pasture.

The principal statutory framework includes the Law of Property Act 1925, the Land Registration Act 2002, the Prescription Act 1832, and the Law of Property Act 1925 provisions governing restrictive covenants and their modification.

The law also relies heavily on equitable principles and judicial decisions developed over several centuries. These principles determine when a right is capable of binding future owners, how it may be created, and under what circumstances it can be extinguished.

Understanding these rights is essential when examining property ownership, conveyancing, boundary disputes, development projects, and the registration of land.

1. Easements: Nature and Legal Characteristics

An easement is a proprietary right enjoyed by the owner or occupier of one parcel of land over another parcel of land belonging to someone else.

The land benefiting from the easement is traditionally called the dominant tenement, while the land burdened by the right is called the servient tenement.

For example, suppose a house has no direct access to a public highway. Its owner may possess a legal right of way across a neighbouring property. The house benefits from the easement, while the neighbouring property is burdened by it.

The essential feature of an easement is that it benefits land rather than merely providing a personal advantage to an individual.

This distinction is important because an easement ordinarily attaches to the dominant land and passes to subsequent owners when that land is transferred.

1.1 The four essential characteristics

The leading authority is Re Ellenborough Park [1956] Ch 131, in which the Court of Appeal established four essential characteristics that must generally be satisfied for a right to constitute an easement.

First, there must be a dominant and a servient tenement.

An easement must benefit identifiable land and impose a corresponding burden on other identifiable land.

A purely personal permission to use someone else’s property will not ordinarily qualify.

Second, the dominant and servient tenements must be owned or occupied by different persons.

An owner cannot ordinarily enjoy an easement over their own land because an easement presupposes a relationship between separate property interests.

Where two adjoining properties come into common ownership, an existing easement may be extinguished through unity of ownership and possession, although the precise legal consequences depend on the circumstances.

Third, the right must accommodate the dominant tenement.

This means that the right must benefit the land itself rather than merely provide a personal advantage to its owner.

In Re Ellenborough Park, the right to use communal gardens was held capable of benefiting the surrounding houses because it enhanced the ordinary residential enjoyment of those properties.

The requirement does not mean that the easement must be essential for the property’s use. It is sufficient that the right provides a genuine benefit connected with the normal enjoyment or use of the dominant land.

Fourth, the right must be capable of forming the subject matter of a grant.

The right must be sufficiently definite and legally recognisable to be granted as an easement.

It must not be so extensive that it effectively deprives the servient owner of possession or control of the property.

These requirements distinguish easements from informal arrangements, personal licences, and other permissions that do not create proprietary rights.

1.2 Dominant and servient land

The relationship between the two properties is fundamental.

An easement is not simply a right that one individual possesses against another. It is a right connected with the ownership or occupation of particular land.

For example, if a property owner has a right to use a private driveway belonging to a neighbour, the right ordinarily benefits the property rather than the owner personally.

When the dominant property is sold, the benefit of the easement will generally pass to the purchaser.

Likewise, a purchaser of the servient property will ordinarily acquire it subject to any easement that legally binds the land.

This proprietary character distinguishes an easement from a contractual permission that exists only between the original parties.

1.3 Types of easements

Easements may take different forms depending on the nature of the right granted.

Rights of way permit a person entitled to the benefit of the easement to pass over another person’s land. They may concern pedestrian access, vehicles, or both, depending on the wording and circumstances of their creation.

Rights of drainage allow water or other relevant substances to pass through pipes, drains, or drainage systems situated on another person’s land.

Rights to light protect the access of natural light through defined apertures, subject to the relevant legal requirements.

Rights of support may protect a building or structure against the removal of necessary physical support from neighbouring land.

Rights to use facilities may include the use of shared access roads, pathways, parking facilities, or other installations where the legal requirements for an easement are satisfied.

Not every useful arrangement qualifies as an easement. A right to receive a view, for example, is not ordinarily recognised as an easement because English law does not generally protect an unobstructed view as a proprietary right.

The classification depends on the substance and legal characteristics of the claimed right, not simply on its practical usefulness.

2. Creation of Easements

Easements may arise through several different legal mechanisms.

They can be expressly granted or reserved, implied by law, acquired through long use, or created under statutory provisions.

The method of creation is important because it determines the scope of the right, the evidence required to establish it, and the extent to which it binds subsequent owners.

2.1 Express grant and reservation

An express easement is created through an explicit legal instrument, usually a deed.

A landowner may grant an easement over part of their property in favour of neighbouring land.

For example, a developer who owns two adjoining plots may sell one plot while granting its purchaser a right of way across a driveway retained as part of the developer’s remaining property.

Conversely, where a landowner sells part of their property but wishes to retain a right over the land being transferred, the transaction may include an express reservation.

The deed should identify the affected land and define the nature and extent of the right.

Where registered land is involved, the Land Registration Act 2002 imposes additional registration requirements.

Under section 27(2)(d), an express grant or reservation of a qualifying legal easement over registered land must be completed by registration.

Until the relevant registration requirements are satisfied, the disposition does not operate at law.

HM Land Registry explains these requirements in its Practice Guide 62: Easements.

2.2 Implied easements

An easement may arise by implication even where the parties have not expressly included it in the conveyance.

The law recognises that certain rights may be necessary or reasonably contemplated when land is divided or transferred.

The principal categories include easements of necessity, easements implied under the rule in Wheeldon v Burrows, and easements arising under section 62 of the Law of Property Act 1925.

Easements of necessity

An easement of necessity may arise where the property cannot be used for its intended purpose without the claimed right.

The most familiar example is a landlocked parcel of land that has no access to a public highway.

Where an owner divides their land and transfers a portion that would otherwise have no legally available access, an easement of necessity may arise in the circumstances recognised by law.

The doctrine is relatively narrow.

Mere convenience or substantial inconvenience does not automatically establish necessity.

The rule in Wheeldon v Burrows

The rule in Wheeldon v Burrows (1879) 12 Ch D 31 concerns the implication of easements when a landowner disposes of part of their property while retaining the remainder.

Where the owner has used one part of the land for the benefit of another, certain rights may pass to the purchaser if the relevant conditions are satisfied.

The traditional requirements include that the claimed right was used by the common owner for the benefit of the part transferred, was continuous and apparent, and was necessary for the reasonable enjoyment of that part as it was conveyed.

The rule prevents a purchaser from losing certain established benefits simply because the conveyance did not expressly mention them.

Section 62 of the Law of Property Act 1925

Section 62 can operate to incorporate certain existing rights and privileges into a conveyance of land.

It may transform rights previously enjoyed as part of a wider property arrangement into independent easements, provided the legal conditions are satisfied.

The provision can be particularly important where property previously occupied or used under a common ownership arrangement is subsequently divided and conveyed.

However, section 62 does not automatically convert every informal permission into an easement. Its operation depends on the legal character of the existing arrangement and the circumstances of the conveyance.

2.3 Easements acquired by prescription

Prescription is the acquisition of an easement through long and sufficiently established use.

The underlying principle is that a right may become legally recognised where it has been exercised openly, without force, without secrecy, and without permission for the required period.

The traditional expression is nec vi, nec clam, nec precario.

The principal methods include:

• Prescription at common law.
• The doctrine of lost modern grant.
• The statutory procedure under the Prescription Act 1832.

The Prescription Act 1832 establishes different periods depending on the nature of the claimed right.

For rights of way and other relevant easements, section 2 provides a framework involving periods of twenty years and forty years.

The twenty-year period may establish a claim subject to the statutory qualifications, while uninterrupted enjoyment for forty years can provide a stronger basis for an absolute right, unless the statutory exception applies.

The doctrine of lost modern grant is particularly important because it may establish an easement after twenty years of qualifying use without requiring proof that an actual historical deed once existed.

The law effectively presumes that a grant was made and subsequently lost.

Prescription does not apply indiscriminately to every type of claimed easement. The nature of the right and the applicable legal requirements must be examined.

3. The Scope, Exercise, and Extinguishment of Easements

Once an easement has been established, its exercise is governed by the terms of its creation and the applicable principles of property law.

The dominant owner may exercise the right for the benefit of the dominant property, but cannot necessarily expand it beyond its legally established scope.

3.1 Extent of the right

The scope of an easement depends primarily on the instrument creating it or, where it arises by implication or prescription, on the circumstances establishing its existence.

A right of way granted for pedestrian access does not automatically include unrestricted vehicular access.

Similarly, a right to use a drainage system does not necessarily permit the dominant owner to increase the burden on the servient land through substantial additional development.

In McAdams Homes Ltd v Robinson [2004] EWCA Civ 214, the Court of Appeal considered the limits of an easement and the extent to which its exercise could accommodate changes in the use of the dominant property.

The general principle is that reasonable changes in the use of the dominant land may be permitted, provided they do not substantially increase the burden on the servient tenement beyond the scope of the original grant.

3.2 Excessive use and interference

The dominant owner must exercise an easement within its legal scope.

Excessive use may constitute an actionable interference with the servient owner’s rights.

For example, a right of way granted for access to a private residence may not authorise the use of the route for substantially more intensive commercial traffic if that would materially exceed the purpose and scope of the original grant.

The servient owner must also respect the easement.

They cannot obstruct a right of way, interfere with a drainage easement, or otherwise prevent its lawful exercise.

Where interference occurs, the dominant owner may seek an injunction or damages, depending on the circumstances.

3.3 Extinguishment

An easement may be extinguished through several recognised mechanisms.

These include:

Express release: The dominant owner may formally release the right in favour of the servient owner.

Unity of ownership and possession: Where the dominant and servient land come into the same ownership and possession, the easement may be extinguished because a person cannot ordinarily hold an easement over their own land.

Abandonment: An easement may be extinguished where the dominant owner demonstrates an intention permanently to abandon it. Mere non-use is generally insufficient.

Operation of law: Certain changes in legal circumstances may terminate an easement or make its continued existence impossible.

Statutory modification or extinguishment: In particular circumstances, an easement may be modified or discharged through statutory procedures.

Abandonment is particularly fact-sensitive.

In Benn v Hardinge (1992) 66 P & CR 246, the court considered the circumstances in which prolonged non-use may support an inference that an easement has been abandoned.

The central question is whether the conduct of the dominant owner demonstrates an intention to abandon the right permanently.

HM Land Registry’s Practice Guide 62 also addresses the registration consequences of extinguishment and the evidence required to amend the relevant title entries.

4. Covenants Affecting Land

A covenant is a legally enforceable promise concerning the use, development, maintenance, or enjoyment of land.

Unlike an easement, which grants a right to do something on another person’s land, a covenant establishes an obligation undertaken by one party in favour of another.

Covenants are particularly common in residential developments, commercial property transactions, and transfers involving divided plots of land.

For example, when a developer sells individual houses on an estate, the conveyances may contain promises restricting the use of the properties. These may prohibit commercial activities, limit building alterations, or require owners to contribute towards the maintenance of shared facilities.

The legal significance of a covenant depends on its wording, its classification, and whether its benefit or burden can pass to subsequent owners.

The two principal categories are positive covenants and restrictive covenants.

4.1 Positive covenants

A positive covenant requires the person bound by it to perform an action or incur expenditure.

Examples include:

• Maintaining a shared private road.
• Repairing a boundary wall.
• Contributing towards the maintenance of communal gardens.
• Paying a proportion of the costs of maintaining shared facilities.
• Carrying out specified repairs or improvements.

Positive covenants create an affirmative obligation.

The traditional principle of English land law is that the burden of a positive freehold covenant does not ordinarily run with the land at common law or in equity.

Consequently, a person who purchases freehold land is not automatically bound by every positive promise made by a previous owner.

This principle is illustrated by Austerberry v Oldham Corporation (1885) 29 Ch D 750, in which the court considered the enforceability of obligations concerning the maintenance of a road.

The rule creates practical difficulties, particularly in modern housing developments where shared facilities require continuing financial contributions.

A developer may obtain promises from the original purchasers, but those promises do not necessarily bind every subsequent freehold owner.

The law has developed certain mechanisms to address this problem, including chains of indemnity covenants, leasehold arrangements, estate rentcharges, and other statutory or proprietary structures.

However, these mechanisms do not mean that the general rule concerning positive freehold covenants has disappeared.

4.2 Restrictive covenants

A restrictive covenant requires the owner of land to refrain from doing something.

It may restrict the use, development, or alteration of the property.

Common examples include:

• Prohibiting commercial use of residential premises.
• Restricting the construction of additional buildings.
• Preventing the erection of structures above a specified height.
• Prohibiting subdivision of a property.
• Restricting particular industrial or agricultural activities.
• Preventing alterations that would affect the character of a residential development.

Restrictive covenants are particularly important because their burdens may bind subsequent owners in equity.

The leading authority is Tulk v Moxhay (1848) 2 Ph 774.

In that case, the owner of Leicester Square had sold the property subject to a covenant that it should remain open and undeveloped.

A subsequent purchaser acquired the land with knowledge of the restriction but argued that they were not bound because they had not personally entered into the original covenant.

The Court of Chancery held that the restrictive obligation could be enforced against the subsequent purchaser in equity.

The decision established the foundation of the doctrine under which restrictive covenants may bind successors in title.

It prevents purchasers from deliberately disregarding restrictions affecting land simply because they were not parties to the original agreement.

4.3 The requirements for enforcement of restrictive covenants

The doctrine developed in Tulk v Moxhay is subject to several important requirements.

The covenant must be restrictive in substance.

The obligation must generally require the owner to refrain from doing something rather than undertake positive expenditure or perform affirmative work.

The classification depends on the substance of the covenant rather than the terminology used.

The covenant must benefit identifiable land.

The covenant must accommodate the dominant land rather than merely provide a personal advantage to the original covenantee.

For example, a restriction preventing industrial activity may benefit neighbouring residential property by protecting its character and amenity.

The covenant must have been intended to run with the burdened land.

Section 79 of the Law of Property Act 1925 provides that, subject to contrary intention, a covenant relating to land is generally deemed to be made on behalf of the covenantor and their successors in title.

However, section 79 does not independently make every covenant enforceable against successors. The other legal requirements must also be satisfied.

The successor must be subject to the relevant equitable rules.

The successor must acquire the land subject to the covenant under the applicable principles governing notice and registration.

For registered land, the Land Registration Act 2002 provides the principal system for protecting the benefit of restrictive covenants.

These requirements ensure that restrictive covenants operate as proprietary obligations rather than unlimited personal restrictions imposed on future owners.

4.4 The benefit of a restrictive covenant

The benefit of a restrictive covenant must also be capable of passing to subsequent owners of the dominant land.

Section 78 of the Law of Property Act 1925 provides an important statutory mechanism concerning the transmission of the benefit of covenants.

The provision generally treats a covenant relating to land as being made with the covenantee’s successors in title, unless a contrary intention appears.

The benefit may also pass through express assignment or annexation to the dominant land.

In Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 WLR 594, the Court of Appeal considered the operation of section 78.

The decision established that the benefit of a restrictive covenant may be annexed to land through the statutory provision without the need for an express assignment in every case.

This is particularly important in residential developments where the original developer intends restrictions to benefit multiple plots or properties.

The precise identification of the dominant land remains essential.

A covenant cannot generally be enforced merely because a claimant considers its restriction desirable. The claimant must establish a legally sufficient entitlement to its benefit.

4.5 Positive covenants and the chain of indemnity

Because the burden of a positive freehold covenant does not ordinarily run with the land, developers and conveyancers have historically used contractual arrangements to preserve obligations between successive owners.

One common mechanism is the chain of indemnity covenants.

Under this arrangement, each purchaser promises the previous owner that they will comply with specified obligations and indemnify that owner against losses resulting from a breach.

The obligation is repeated in subsequent transfers.

For example, the first purchaser promises to maintain a private road and indemnify the original developer. When that purchaser sells the property, the next purchaser enters into a similar promise.

This creates a chain of contractual obligations.

However, the mechanism has limitations. It depends on the existence and continuity of enforceable contractual relationships and may become difficult to administer over several generations of ownership.

It also does not necessarily give every neighbouring owner a direct right to enforce the positive obligation.

This explains why modern developments may use alternative arrangements, including management companies, estate rentcharges, and carefully structured leasehold or commonhold arrangements.

5. Enforcement, Modification, and Discharge of Covenants

Restrictive covenants may continue to affect land for many decades.

However, their continued enforceability depends on the circumstances, the wording of the instrument, the identity of the parties, and any subsequent legal developments.

A covenant that was reasonable when originally created may become unnecessarily restrictive as the character of the neighbourhood changes.

English land law therefore provides mechanisms through which restrictive covenants may be enforced, modified, or discharged.

5.1 Enforcement by injunction

An injunction is one of the principal remedies for breach of a restrictive covenant.

Where a landowner undertakes an activity prohibited by a covenant, a person entitled to enforce it may apply to the court for an injunction preventing the breach or requiring the cessation of the prohibited activity.

For example, if a residential property is subject to a covenant prohibiting commercial use, the beneficiary may seek an injunction where the property is being operated as a business in breach of the restriction.

The court must consider the nature of the covenant, the circumstances of the breach, and the appropriate remedy.

An injunction is not automatic in every case.

Depending on the circumstances, the court may instead award damages.

5.2 Damages

Damages may be available where a restrictive covenant has been breached.

The purpose is to compensate the claimant for the legally recognised loss resulting from the breach.

In some circumstances, damages may be awarded instead of an injunction under the principles governing equitable relief.

The assessment depends on the nature of the covenant, the impact of the breach, and the applicable remedial principles.

The existence of a breach does not necessarily mean that the claimant will obtain the exact remedy requested.

5.3 Modification and discharge under section 84

Section 84 of the Law of Property Act 1925 provides a statutory mechanism through which restrictive covenants may be modified or discharged.

Applications are generally determined by the Upper Tribunal (Lands Chamber).

The jurisdiction is particularly important where a covenant prevents a landowner from developing or using property in a way that has become reasonable or appropriate.

The Upper Tribunal may modify or discharge a restrictive covenant where one of the statutory grounds is established.

The principal grounds include:

Obsolescence.

A covenant may have become obsolete because of changes in the character of the property or neighbourhood, or because of other circumstances affecting its original purpose.

For example, a restriction designed to preserve a particular residential character may no longer serve a substantial practical purpose following extensive redevelopment of the surrounding area.

Impeding reasonable use of land.

A covenant may be modified or discharged where it impedes a reasonable use of the land.

The applicant must satisfy the statutory requirements, including the relevant public interest or absence-of-substantial-injury conditions.

Agreement of beneficiaries.

Where persons entitled to the benefit of the covenant have agreed to its modification or discharge, the statutory jurisdiction may provide an appropriate mechanism for formalising the change.

No substantial injury to beneficiaries.

The Tribunal may also exercise its powers where the proposed modification or discharge would not injure the persons entitled to the benefit of the restriction.

The statutory conditions must be examined carefully. A landowner cannot simply ignore a covenant because they believe it is outdated.

The Upper Tribunal considers the evidence and applies the statutory tests.

5.4 Objections and compensation

An application under section 84 may be opposed by persons claiming the benefit of the covenant.

They may argue that the restriction continues to protect a legitimate property interest and that its removal would cause substantial injury.

The Tribunal may also consider whether compensation should be payable to affected beneficiaries.

Compensation may be relevant where modification or discharge deprives a person of a substantial property advantage.

The purpose is to balance the applicant’s interest in making reasonable use of their land against the rights of those who benefit from the covenant.

The procedure is therefore not a simple administrative cancellation.

It involves a legal assessment of the continuing purpose and practical effect of the restriction.

6. Registration and Protection of Rights Affecting Land

The registration of easements, covenants, and profits à prendre is essential to understanding how these rights affect subsequent purchasers.

The Land Registration Act 2002 establishes the modern framework for registered land.

Its central objective is to provide greater certainty concerning ownership and third-party interests.

However, not every right affecting land is protected through the same registration mechanism.

The nature of the right determines the appropriate method of protection.

6.1 Registration of easements

Under section 27 of the Land Registration Act 2002, certain express grants and reservations of easements over registered land constitute registrable dispositions.

The registration requirements must be completed before the disposition operates at law.

The benefit of the easement is normally entered in the property register of the dominant title, while the burden is recorded in the register of the servient title.

The registration system allows purchasers to identify the existence of rights affecting the property.

However, certain legal easements may also qualify as overriding interests under Schedule 3, paragraph 3 of the Act.

A legal easement may override a registered disposition where it satisfies the statutory conditions.

These include circumstances where the right would have been obvious on a reasonably careful inspection of the land, was known to the purchaser, or was exercised within the year preceding the disposition.

The precise conditions must be considered in each case.

An equitable easement is treated differently and may require protection through an appropriate notice.

6.2 Registration of restrictive covenants

Restrictive covenants affecting registered land are generally protected by entering a notice in the register of the burdened property.

The notice protects the relevant equitable interest against purchasers and other persons acquiring registered interests, subject to the statutory priority rules.

For unregistered land, the benefit of a restrictive covenant is generally protected through registration as a Class D(ii) land charge under the Land Charges Act 1972, where the statutory conditions apply.

Failure to register a registrable land charge can have serious consequences.

In Midland Bank Trust Co Ltd v Green [1981] AC 513, the House of Lords considered the consequences of failing to register an option to purchase as a land charge.

Although the case concerned an estate contract rather than a restrictive covenant, it demonstrates the strict consequences that may follow from failure to comply with the statutory registration system.

The legal effectiveness of an interest against a purchaser therefore depends not only on its original creation but also on the applicable registration requirements.

6.3 Registration of profits à prendre

Profits à prendre are also recognised within the land registration framework.

A profit appurtenant to a particular dominant property is connected with that land and ordinarily passes with it.

A profit in gross, by contrast, exists independently of ownership of a dominant tenement.

Certain profits in gross may be substantively registered with their own title.

Others may be protected by a notice against the affected registered land.

HM Land Registry provides specific guidance in Practice Guide 16: Profits à Prendre.

6.4 Overriding interests

The Land Registration Act 2002 recognises certain rights that may bind purchasers even though they are not entered in the register.

These are known as overriding interests.

The statutory framework is contained principally in Schedules 1 and 3.

Certain legal easements and profits à prendre may qualify as overriding interests, depending on the circumstances.

The system recognises that some rights arise through use, prescription, or other circumstances that may not be reflected immediately in the register.

Nevertheless, the 2002 Act limits the circumstances in which unregistered rights can bind purchasers.

The purpose is to balance the protection of established property rights with the need for transparency and certainty in registered conveyancing.

7. Profits à Prendre: The Right to Take Resources from Land

A profit à prendre is a proprietary right to enter another person’s land and take something capable of ownership from it.

The expression comes from French legal terminology and is commonly shortened to profit.

Unlike an easement, which generally permits a particular use of another person’s land, a profit authorises the removal of something from that land.

For example, an owner may have the right to extract minerals from neighbouring land, collect timber, take fish from a pond, or graze animals on another person’s pasture.

The right may be connected to ownership of a particular property or may exist independently of any dominant land.

7.1 The nature of the right

A profit à prendre involves taking part of the natural resources of another person’s land.

The resource must be capable of ownership.

Examples include:

• Minerals and stone.
• Timber and growing vegetation.
• Turf and peat.
• Fish and other wildlife.
• Natural products obtained from the land.
• Grass consumed by grazing animals.

The right must be distinguished from an ordinary right of access.

For example, a right to walk across agricultural land is ordinarily an easement, whereas a right to enter the same land and remove timber may constitute a profit à prendre.

Similarly, permission to use a pond for recreational purposes is not necessarily a profit. A right to take fish from that pond may qualify.

The distinction is important because the legal requirements governing creation, exercise, and registration are not identical.

7.2 Appurtenant profits

A profit à prendre may be appurtenant to a particular piece of land.

This means that the right benefits the ownership of a dominant tenement.

For example, the owner of one agricultural property may possess a right to graze animals on an adjoining area of land.

The right is attached to the dominant property and ordinarily passes with its ownership.

An appurtenant profit therefore resembles an easement in the sense that it benefits land rather than merely providing a personal advantage to an individual.

However, its essential characteristic is the right to take natural resources rather than simply use another person’s land.

7.3 Profits in gross

A profit in gross exists independently of ownership of a dominant tenement.

The holder does not need to own neighbouring land to benefit from the right.

For example, a company may hold a right to extract minerals from a particular area of land without owning any adjacent property.

A profit in gross may be capable of being transferred independently of other land, subject to its terms and applicable legal requirements.

It may also be capable of separate registration with HM Land Registry.

The distinction between appurtenant profits and profits in gross is important when determining who may exercise the right, whether it passes automatically with a property, and how it can be transferred.

7.4 Creation of profits à prendre

Profits may arise through several mechanisms.

An express profit may be created by deed, identifying the land affected and the resources that may be taken.

A profit may also be reserved when a landowner transfers property but wishes to retain rights to extract certain resources.

Certain profits may arise through prescription, where the relevant requirements of long and sufficiently established use are satisfied.

Statutory rights may also create or regulate certain forms of resource extraction.

HM Land Registry’s Practice Guide 16 explains that profits in gross may be created by express grant or reservation, statute, or prescription under common-law principles and the doctrine of lost modern grant.

An important distinction is that the Prescription Act 1832 does not provide the same statutory acquisition route for profits in gross as it does for easements.

7.5 Exercise and limitations

A profit à prendre must be exercised within the limits of its grant or other legal basis.

The holder cannot assume that a right to take one resource authorises the extraction of every resource found on the land.

For example, a right to collect timber does not automatically include the right to extract minerals.

The extent of the right may be restricted by quantity, location, duration, method of extraction, or other conditions.

The holder must also respect any applicable environmental, planning, conservation, and regulatory legislation.

A proprietary right to extract resources does not automatically confer permission to disregard statutory controls governing the activity.

This is particularly significant in relation to mineral extraction, forestry, fishing, and protected natural habitats.

8. The Distinction Between Easements, Covenants, and Profits à Prendre

Although all three categories concern rights affecting land, they perform different legal functions.

An easement provides a right to use another person’s land for a defined purpose.

A covenant creates a promise concerning land, which may restrict certain activities or require particular conduct.

A profit à prendre permits the holder to enter land and take natural resources from it.

Their differences are important because the legal requirements governing their creation and enforcement are not interchangeable.

Feature	Easement	Covenant	Profit à prendre
Legal nature	Proprietary right of use	Promise concerning land	Proprietary right to take resources
Main purpose	Use or enjoyment of another property	Restrict or regulate land use	Extract or take something from land
Dominant land	Generally required	Benefit must be attached to identifiable land for a covenant to run with it	May or may not be required
Typical example	Right of way	Restriction on building	Right to extract timber
May bind successors	Yes, subject to applicable rules	Restrictive covenants may bind successors in equity	Yes, subject to applicable rules
Positive obligations	Not ordinarily the principal characteristic	May impose affirmative obligations	Does not ordinarily impose a general maintenance obligation
Registration	Depends on creation and type of land	Notice or land charge, as applicable	Registration or other statutory protection, depending on type

The distinction becomes particularly important in conveyancing.

A purchaser may acquire property subject to an easement, a restrictive covenant, or a profit à prendre even though these interests do not amount to ownership of the land itself.

The purchaser must therefore examine the legal status of third-party rights before completing the transaction.

9. Property Transactions and the Practical Importance of Third-Party Rights

Easements, covenants, and profits à prendre frequently determine the practical value and usefulness of land.

A property may have a valid registered title but still be subject to substantial restrictions affecting its development or occupation.

For example, a developer purchasing land for residential construction must investigate whether neighbouring owners possess rights of way across the site, whether restrictive covenants prohibit additional buildings, and whether third parties have rights to extract natural resources.

These rights may affect the design, cost, and feasibility of the proposed development.

9.1 Conveyancing searches and title investigation

During conveyancing, the buyer’s solicitor examines the title register, historical conveyances where relevant, and other documents affecting the property.

The investigation should identify:

• Registered easements benefiting or burdening the property.
• Restrictive covenants and their beneficiaries.
• Rights of way and access arrangements.
• Drainage and utility rights.
• Profits à prendre.
• Restrictions on development or land use.
• Relevant unregistered interests that may bind the purchaser.

A title investigation should not be limited to the registered proprietor’s ownership.

The purchaser must also understand the legal rights that affect the property and the extent to which those rights may restrict its future use.

9.2 Development and planning

The existence of planning permission does not automatically extinguish private property rights.

For example, a local planning authority may grant permission for a development that interferes with an existing private right of way or breaches a restrictive covenant.

The planning permission may remain valid, but the developer may still face private-law proceedings.

This distinction is fundamental.

Planning law determines whether development is permitted under the public regulatory framework. Property law determines whether the developer has the necessary private rights to carry it out.

A developer may therefore need to obtain the release or modification of a restrictive covenant, negotiate an easement, or resolve an existing property dispute before proceeding.

9.3 Disputes between neighbouring owners

Neighbouring property owners frequently disagree about the existence, scope, or exercise of rights affecting their land.

Common disputes include:

• Whether a right of way exists.
• Whether a right of way includes vehicular access.
• Whether an easement has been obstructed.
• Whether a restrictive covenant prohibits a proposed extension.
• Whether a covenant has been abandoned or modified.
• Whether long-standing use has created a prescriptive right.
• Whether a third party is entitled to extract resources from the land.

These disputes may require examination of title documents, historical deeds, plans, correspondence, witness evidence, and the physical characteristics of the property.

The court may be asked to determine whether the right exists, establish its scope, prevent interference, or award damages.

Where a restrictive covenant is involved, an application under section 84 of the Law of Property Act 1925 may provide an alternative to ordinary litigation.

10. The Modern Significance of Rights Affecting Land

The law governing easements, covenants, and profits à prendre reflects the historical development of English property law.

Many of these rights originated in an agricultural society in which access to common land, grazing, water, woodland, and other natural resources was essential to economic life.

As land ownership became increasingly divided and urbanised, these principles developed to accommodate residential developments, industrial activity, transport infrastructure, and commercial property transactions.

Modern property law continues to rely on these traditional categories, although their practical applications have changed.

Rights of way now frequently concern residential developments and private access roads. Covenants regulate building restrictions, commercial use, and the management of housing estates. Profits à prendre remain relevant to agriculture, forestry, mineral extraction, fisheries, and other resource-related activities.

The Law Commission examined the complexity of this area in its report Making Land Work: Easements, Covenants and Profits à Prendre (Law Com No 327, 2011).

The report considered the difficulties created by historical doctrines, the uncertainty surrounding certain property rights, and the need to modernise the law.

Although the recommendations did not result in a complete legislative replacement of the traditional framework, the report remains an important reference for understanding the structure and possible reform of this area of property law.

The modern system therefore combines ancient property principles with statutory regulation and a registration framework designed to provide greater certainty for owners, purchasers, and other interested parties.

11. Conclusion

Easements, covenants, and profits à prendre are essential components of property law in England and Wales because they regulate the relationships between different parcels of land and the people who own or occupy them.

An easement creates a proprietary right to use another person’s land for a defined purpose. Its validity depends on established legal characteristics, including the existence of dominant and servient tenements and the requirement that the right accommodates the dominant land.

Covenants establish legally enforceable promises concerning land. The distinction between positive and restrictive covenants is particularly important because their burdens are treated differently under English property law. The principle established in Tulk v Moxhay allows certain restrictive covenants to bind successors in title, while positive freehold covenants generally do not run with the land.

Profits à prendre provide another form of proprietary right by allowing individuals or organisations to enter another person’s land and take natural resources. Their classification as appurtenant or in gross determines whether the right is attached to particular land or exists independently.

The Land Registration Act 2002 provides an important framework for protecting these interests and determining their effect on subsequent purchasers. Nevertheless, certain rights may bind purchasers as overriding interests, demonstrating that registration does not always provide a complete picture of every interest affecting land.

The courts continue to play a significant role in defining the scope of these rights, determining whether they have been acquired through prescription, resolving disputes concerning their exercise, and deciding whether restrictive covenants should be modified or discharged.

Ultimately, these doctrines demonstrate that land ownership is not an isolated or unlimited legal entitlement. It exists within a wider network of proprietary rights, contractual obligations, and statutory restrictions that determine how land can be used and enjoyed.

Key Takeaways

1. Easements are proprietary rights over another person’s land. They allow particular uses, such as rights of way, drainage, light, or support.

2. Four essential characteristics govern easements. The principles established in Re Ellenborough Park require identifiable dominant and servient tenements, different ownership or occupation, accommodation of the dominant land, and a right capable of forming the subject matter of a grant.

3. Easements may arise in several ways. They can be expressly granted, implied by law, acquired through prescription, or created under statutory provisions.

4. Positive and restrictive covenants are fundamentally different. Positive covenants require action or expenditure, while restrictive covenants require the owner to refrain from specified activities.

5. Restrictive covenants may bind subsequent owners in equity. The principle established in Tulk v Moxhay provides the foundation for their enforcement against successors in title.

6. Section 84 of the Law of Property Act 1925 permits modification or discharge. The Upper Tribunal may modify or discharge restrictive covenants where the statutory conditions are satisfied.

7. Profits à prendre allow the extraction of natural resources. They may concern minerals, timber, pasture, fish, and other things capable of ownership.

8. Profits may be appurtenant or in gross. Appurtenant profits benefit particular land, whereas profits in gross exist independently of ownership of a dominant property.

9. Registration determines important aspects of priority and enforceability. The Land Registration Act 2002 establishes the principal framework for protecting rights affecting registered land.

10. Planning permission does not automatically override private property rights. A development may be authorised under planning law but still breach an easement or restrictive covenant.

Frequently Asked Questions

1. What is an easement in English property law?

An easement is a proprietary right allowing the owner or occupier of one property to use another person’s land for a particular purpose. Common examples include rights of way, drainage, light, and support.

2. What is the difference between an easement and a licence?

An easement is a proprietary right that may bind successors in title. A licence is generally a personal permission to use land and does not ordinarily create an independent proprietary interest.

3. Can an easement be acquired without a written agreement?

Yes. Easements may arise by implication, prescription, or operation of law. Long-standing use may establish a prescriptive easement where the applicable legal requirements are satisfied.

4. What is a restrictive covenant?

A restrictive covenant is a legally enforceable promise restricting the use or development of land. It may prohibit activities such as commercial use, additional construction, or subdivision of a property.

5. Do positive covenants bind future freehold owners?

Generally, no. The burden of a positive freehold covenant does not ordinarily run with the land. However, certain legal arrangements, including chains of indemnity covenants and estate rentcharges, may provide mechanisms for addressing continuing obligations.

6. Can a restrictive covenant be removed?

Yes. Under section 84 of the Law of Property Act 1925, the Upper Tribunal (Lands Chamber) may modify or discharge a restrictive covenant where the statutory conditions are established.

7. What is a profit à prendre?

A profit à prendre is a proprietary right to enter another person’s land and take something capable of ownership, such as minerals, timber, fish, or pasture.

8. What is the difference between an appurtenant profit and a profit in gross?

An appurtenant profit benefits a particular parcel of land and generally passes with its ownership. A profit in gross exists independently of any dominant property and may be transferred separately, subject to the applicable legal rules.

9. Can a landowner obstruct an existing right of way?

Generally, no. A landowner must respect a valid easement and cannot substantially interfere with its lawful exercise. The dominant owner may seek an injunction or damages where unlawful obstruction occurs.

10. Does an easement automatically disappear if it is not used?

No. Mere non-use is generally insufficient. Abandonment requires evidence of an intention permanently to give up the right, assessed in the context of all relevant circumstances.

11. Does planning permission override a restrictive covenant?

No. Planning permission does not automatically extinguish private property rights. A development may have planning approval while still constituting a breach of an enforceable restrictive covenant.

12. Can an easement bind a new owner of the servient property?

Yes. A valid legal easement generally binds successors in title, subject to the applicable rules governing registration, priority, and overriding interests.

Principal Legislation and Case Law

Legislation

• Law of Property Act 1925 – legal estates, easements, covenants, and property rights, particularly sections 1, 62, 78, 79, 84, and 187.
• Land Registration Act 2002 – registration and protection of interests affecting registered land, particularly sections 27 and 29 and Schedules 1 and 3.
• Prescription Act 1832 – acquisition of certain easements through long use.
• Land Charges Act 1972 – registration of specified interests affecting unregistered land.

Leading cases

• Wheeldon v Burrows (1879) 12 Ch D 31 – implication of easements on the transfer of part of a property.
• Austerberry v Oldham Corporation (1885) 29 Ch D 750 – the general rule concerning the burden of positive freehold covenants.
• Tulk v Moxhay (1848) 2 Ph 774 – enforcement of restrictive covenants against successors in equity.
• Re Ellenborough Park [1956] Ch 131 – the essential characteristics of an easement.
• Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 WLR 594 – statutory annexation of the benefit of restrictive covenants under section 78.
• Midland Bank Trust Co Ltd v Green [1981] AC 513 – the consequences of failing to register a registrable interest under the land charges system.
• Benn v Hardinge (1992) 66 P & CR 246 – abandonment of easements through non-use and surrounding circumstances.
• McAdams Homes Ltd v Robinson [2004] EWCA Civ 214 – the scope and permissible exercise of easements.

Additional official reference materials

• HM Land Registry – Practice Guide 62: Easements.
• HM Land Registry – Practice Guide 16: Profits à Prendre.
• House of Commons Library – Freehold Covenants (2026).
• Law Commission – Making Land Work: Easements, Covenants and Profits à Prendre (Law Com No 327).

This article examines property law in England and Wales and is intended for legal education and academic reference.