Osborne v Bradley: ChD 1903

The plaintiff had sold land to the purchaser, subject to covenants restricting the development on the land to private dwellings and prohibiting manufacture, trade or business on the land. The purchaser built two houses and subsequently sold the land and houses to the defendant, subject to the covenants. The defendant lodged plans with the local council to convert the houses into shops.The plaintiff brought an action on a covenant against the purchaser of land subject to a negative covenant. The question arose as to whether the purchaser was liable to the owner of the land who had the benefit of the covenant. This depended on whether or not the covenant was entered into as part of a building scheme. The covenant contained a provision under which the original vendor reserved the right to vary or waive the conditions with regard to unsold lots.
Held: The evidence did not establish that the land was part of a building scheme when sold. As to the provision relating to waiver, Farwell J said: ‘The mere fact that the vendor has reserved to himself the right to vary the conditions as regards unsold property might not by itself be sufficient to prevent the existence of a scheme in respect of the plots sold before that period.’ Farwell J did not hold that such a provision was invalid.
A failure by the convenantee to pursue breaches of covenant which were minor or insignificant would not be considered by the court as amounting to acquiescence in ordinary circumstances.


Farwell J


[1903] 2 Ch 446


England and Wales

Cited by:

CitedMarquess of Zetland v Driver CA 1939
The vendor was tenant for life of settled land at Redcar. By a 1926 conveyance part was conveyed to a purchaser who covenanted ‘to the intent and so as to bind as far as practicable the said property hereby conveyed into whosesoever hands the same . .
CitedElliston 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 . .
CitedElliston v Reacher CA 2-Jan-1908
Lord Cozens Hardy MR said: ‘It is laid down in Co. Litt. 230b, that a man who takes the benefit of a deed, is bound by a condition contained in it, though he does not execute it.’
Farwell J referred to Osborne v Bradley, and said: ‘With . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 09 May 2022; Ref: scu.196684