Profits greatly resemble easements, but there is variation that distinguishes the two. Attorneys involved in real estate law should be able to know the difference between the two easily. According to real estate law, profits are non-possessive interest in a piece of land. Due to the necessity of permitting access to land so that resources such as petroleum, minerals, and timber may be gathered, a profit contains an implied easement for the profit owner to enter the other party’s land for the permitted purpose of collecting the resources.
According to real estate law, profits can be created with an expression through an agreement recommended to be advised by attorneys from both parties. The agreement must be made between the property owner and the owner of the profit. It can also be created through a prescription which is where the owner of the profit has made “open” use of the land for a continuous and interrupted rightful, consented period.
There are two types of profit. A profit can be considered appurtenant which is owned by an adjacent landowner and tied to the use of the adjacent land. It can only be used by the owner of the adjacent property. Attorneys would define an appurtenant profit to a right or restriction that goes with any given property such as a covenant against blocking the neighbor’s nice view. In contrast, a profit in gross can be assigned or transferred by the owner of the property. Benefits and obstructions that are not tied to ownership or possession of a specific portion of the land are called “in gross.”
In real estate law, courts will deduce a profit as being in gross unless the profit is explicitly expressed as being appurtenant. Benefits from areas in governmental bodies, conservation, preservation organizations, pipeline owners, railroads, and utility companies are often in gross. Attorneys would recommend that profit owners know the difference between the two.
Termination of a profit can occur through different ways and it usually requires an attorney heavily experienced with real estate law. Real estate lawyers can handle mergers where the owner of the profit receives the land to which it applies and there is no longer a need for a separate right to take the resources off of it. A release is where the owner of the profit can execute a contract, usually with the help of an attorney, to surrender the profit to the owner of the land.
Abandonment where the owner of the profit stops to make use of it for quite a bit of time to guide a sensible owner to be convinced that it will no longer be used. Misuse, which is when a profit is used in a way that it places trouble on the servient’s property, is another way to terminate a profit according to real estate law.