18. Profits

Question 1

What is a profit?

Answer 1

1) Holder of profit benefits from;

2) Right to take soil/substance from another’s land (servient tenement)
- Easements implied
- NOT possess/enjoy
- Minerals, timber, oil, fish

Question 2

What is required for profit appurtenant?

Answer 2

1) Dominant tenement
- Benefitted by profit

2) Servient tenement
- Burdened by profit

Question 3

What is required for profit in gross?

Answer 3

1) Profit holder
- Benefitted by easement
- NO dominant tenement ownership/possession required (profit is independent)

2) Servient tenement
- Burdened by profit

Question 4

How can benefit/burden run with transfer of profits?

Answer 4

Profit appurtenant (land becomes subdivided)

1) Profit transfers with land
2) Burden NOT overly increased
3) Benefit (profit) will attach to each parcel

Profit in gross
- Profit must be exclusive => Transferrable

Question 5

How may profits be terminated?

Answer 5

(END CRAMPS)

Estoppel
- Servient tenement Holder’s conduct + reasonable reliance + change of position

Necessity
- Expires as soon as necessity ends

Destruction

• NOT voluntary
• Structures

Condemnation

• Of servient tenement
• Taking (5A/14A) => Dominant tenement holder is entitled to just compensation

Release (written)

• Dominant holder => Servient holder
• Concurrent conveyance

Abandonment

1) Intent
2) Permanent abandonment
- NOT mere non-use (even for ‘long’ period)

Merger of ownership

• Dominant tenement
• Servient tenement (equal/longer duration, e.g. Fee simple vs Life Estate)
• NO revival by separation

Prescription (Servient tenement)

1) Continuous
- Statutory period
- NO need for constant use
2) Open + Notorious
- Discoverable upon inspection
- E.g. Underground/non-visible uses (pipes, electric lines)
3) Adverse
- NO Owner’s consent
- NO need to be exclusive (Owner can use too) (unlike AP)
4) Hostile
5) Substantial interference with Servient Holder’s possession => Indicate to public that profit has terminated

Surcharge
- Misuse of profit => Surcharges servient tenement

Question 6

What is the difference between easements and profits?

Answer 6

Easement

• Right to use land
• Appurtenant transferrable (NOT to BFP)
• In gross transferrable (for commercial purpose)
• NOT terminable by misuse

Profit

• Right to take resources from land
• Appurtenant transferrable (NOT overly increasing burden)
• In gross transferrable (with exclusivity)
• Terminable by misuse

Question 7

How may profits be created expressly?

Answer 7

By grant (easement > 1 year) (SOF)

1) Writing
2) Signed by servient tenement holder
3) Description (Parties + Land)

By reservation

1) Grantor conveys title to Grantee
2) ONLY Grantor reserves right to use land for special purpose
- Otherwise if TPs’ rights are reserved => Easement is VOID

Question 8

How may profits be created by implication (not statute of frauds)?

Answer 8

By existing use (quasi-easement)

1) Apparent + Continuous use on servient tenement
2) Reasonably necessary for enjoyment on dominant tenement
3) NOT interfere with others’ uses

From subdivision
- Grantees’ use must NOT substantially interfere with Owner’s current use

By necessity

• Owner sells land and deprive access to public road/utility alike
• Owner of servient tenement to locate easement

Question 9

How may profits be created by prescription?

Answer 9

(COAH)

1) Continuous
- Statutory period
- NO need for constant use

2) Open + Notorious
- Discoverable upon inspection
- E.g. Underground/non-visible uses (pipes, electric lines)

3) Adverse
- NO Owner’s consent
- NO need to be exclusive (Owner can use too) (unlike AP)

4) Hostile