The original owner of the estate alleged to be subject to a building scheme had not laid out the estate in lots before selling off plots on it. The court considered whether a building scheme had been established.
Held: The failure did not mean that a building scheme was ineffective.
Cross J referred to the difficulty of annexing to a plot of land ‘A’ which had been earlier sold off, the benefit of a restrictive covenant imposed on the sale of plot ‘B’ which was the subject of a later sale, and said: ‘for well over 100 years past where the owner of land deals with it on the footing of imposing restrictive obligations on the use of various parts of it as and when he sells them off for the common benefit of himself (in so far as he retains any land) and of the various purchasers inter se a court of equity has been prepared to give effect to this common intention notwithstanding any technical difficulties involved.’
He went on to explore the history of the law relating to building schemes: ‘The view taken by the courts has been rather that the common vendor imposed a common law on a defined area of land and that whenever he sold a piece of it to a purchaser who knew of the common law, that piece of land automatically became entitled to the benefit of, and subject to the burden of, the common law. With the passage in time it became apparent that there was no particular virtue in the execution of a deed of mutual covenant – save as evidence of the intention of the parties – and what came to be called ‘building schemes’ were enforced by the courts if satisfied that it was the intention of the parties that the various purchasers should have rights inter se, even though no attempt was made to bring them into direct contractual relations.’
 Ch 816
England and Wales
Cited – Elliston v Reacher ChD 1908
The court was asked whether a building scheme had been established.
Held: It had. The court set out the factors which must be shown to establish a building scheme on an estate; Both plaintiff and defendant’s titles must derive from the same . .
Cited – Small v Oliver and Saunders (Developments) Ltd ChD 25-May-2006
The claimant said his property had the benefit of covenants in a building scheme so as to allow him to object to the building of an additional house on a neighbouring plot in breach of a covenant to build only one house on the plot. Most but not all . .
Approved – Lund v Taylor CA 1975
The defendant appealed against a finding that a building scheme was effective over his land. There was no evidence that any purchaser had seen the architect’s plan prepared for the common vendor or was told that the common vendor was proposing to . .
Cited – Turner and Another v Pryce and others ChD 9-Jan-2008
The claimants asserted that they had the benefit of restrictive covenants under a building scheme to prevent the defendants erecting more houses in their neighbouring garden. The defendants pointed to alleged breaches of the same scheme by the . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 December 2021; Ref: scu.242389