ARTICLE
27 September 2015

Agricultural Law NetLetter - Monday, September 21, 2015 - Issue 332

MT
Miller Thomson LLP

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Miller Thomson LLP (“Miller Thomson”) is a national business law firm with approximately 500 lawyers across 5 provinces in Canada. The firm offers a full range of services in litigation and disputes, and provides business law expertise in mergers and acquisitions, corporate finance and securities, financial services, tax, restructuring and insolvency, trade, real estate, labour and employment as well as a host of other specialty areas. Clients rely on Miller Thomson lawyers to provide practical advice and exceptional value. Miller Thomson offices are located in Vancouver, Calgary, Edmonton, Regina, Saskatoon, London, Waterloo Region, Toronto, Vaughan and Montréal. For more information, visit millerthomson.com. Follow us on X and LinkedIn to read our insights on the latest legal and business developments.
The Nova Scotia Court of Appeal has reviewed the law with respect to the ancient and seldom considered property right known as a profit à prendre in relation to a right reserved in a deed to remove hay from farm lands.
Canada Real Estate and Construction

HIGHLIGHTS

The Nova Scotia Court of Appeal has reviewed the law with respect to the ancient and seldom considered property right known as a profit à prendre in relation to a right reserved in a deed to remove hay from farm lands. The Court observed that in order to constitute a valid profit à prendre "appurtenant", the right must be limited to the benefit of another parcel of land -- the dominant tenement. While a profit à prendre "in gross" can be unlimited and need not be connected with a dominant tenement, the person claiming the profit à prendre in gross has to be able to prove valid transfer of ownership from the person who had created it. In this case, the profit à prendre appurtenant could not be established as the right to cut hay was not expressly for the benefit of farm lands which were still owned by the vendor after the Deed (the dominant tenement) and because the hay was no longer used to feed cattle on the farm in any event. The right to a profit in gross belonged to the heirs of the farmer who created the reservation, not the current owner. The current owner of the farm had not established that he owned the haying right, as this right was not conveyed to him with the farm. (Chisholm v. Snyder, CALN/2015-021, [2015] N.S.J. No. 167, Nova Scotia Court of Appeal)

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