What is a right of common?

A right of common is a right which one or more persons may have to take or use some portion of the produce of another man’s soil.

In legal terms, a right of common is a class of right known as a profit a prendre - this is a right to take from the land of another person some part of the soil or mineral under it, some of its natural produce or the wild animals upon it. The right to take water is excluded from a profit.

A profit may exist in common when the holder of it shares the benefit of the produce with the owner of the soil or as a sole or several profit where the owner of the soil is excluded entirely from the benefit. A sole right or profit can be granted to a number of persons and, where it is held by more than one person, the individual share is variously described as a stint, beast gate or cattlegate.

There is nothing to prevent one person from holding more than one stint, either as a result of the original grant or by subsequent purchase. Sole rights are usually held in gross, although there are some inclosure awards that allot sole rights appurtenant (see Glossary) to land.A right of common is always “fee simple absolute in possession”, i.e. it cannot be granted for a fixed term, although the Commons Act 2006 allows the owner of a right of common to lease it for up to 2 years.

As common rights were appendant or appurtenant to a holding the benefits had to support the tenants’ farm; the produce could not be sold.

This section of the Toolkit surrounding rights of common explains the different types of rights and the implications of the legal system that has developed around them. It is a complex area and you are advised to take professional legal advice if any aspects of your particular situation are unclear or ambiguous.

Owners’ rights

Where an owner grazes a common to use their share of the surplus grazing, the rights they exercise have the characteristic of a right of common. For example, there will be a need to limit the number of grazing animals according to the area available and an assumption that adjacent land owners will fence against the common. However, owners’ rights are not true rights or profits and cannot be registered under the Commons Registration Act 1965.

Regulated pasture

Rights on a regulated pasture are not a form of profit a prendre because they are not rights over land owned by another. It is also said that the rights of the stint holders on a regulated pasture are not rights of common for the purposes of the Commons Registration Act 1965, because stint holders are also landowners. However, many regulated pastures have been registered under the Commons Registration Act 1965 and it is essential to analyse the legislation and the award of the Inclosure Commissioner to see exactly what has been created.

Further information and signposting

For more information on severance and attachment under the 2006 Act see the page on Updating the registers in the toolkit section ‘Common Governance’.

  • Commons Act 2006 Explanatory Notes ISBN-0-10-562606-6

  • Paul Clayden, Our Common Land: the law and history of common land and village greens (Henley-on-Thames: Open Spaces Society, 2003).

  • G. D. Gadsden, The Law of Commons (London: Sweet & Maxwell, 1988). n Angela Sydenham, Commons and Village Greens: The New Law (Corsham: Lime Legal, 2006).

  • To view judgement in Bettison v Langton [2001] visit the Parliament Publications site.

Rozzie Weir