Elliston v Reacher [1908] 2 Ch 374

Key point
  • This case laid down the 4 concomitants for valid building schemes
Facts
  • A building society acquired an estate which it plotted out for sale in numbered lots
  • The deeds contained restrictive covenants that on no lot were a hotel, tavern or pub to be built without the vendor’s consent
  • The defendants, who acquired some of the lots, sought to build a hotel contrary to the restrictive covenants
  • The claimants, who acquired other lots, sought injunctions against the defendants based on their right under the restrictive covenants
Held (High Court, Chancery Division)
  • Injunction was granted as there was a building scheme
Parker J

The 4 necessary concomitants of a building scheme are:

  1. Owners derived title under a common vendor
  2. Vendor laid out a defined portion of land in lots for sale subject to restrictions intended to be imposed on all lots, consistent with some general scheme of development – but this is not a rule of law that applies even where there is clear intention that there was to be a building scheme (Texaco Antiles)
  3. Mutual restrictions were intended by the vendor to be for the mutual benefit of all the plots to be sold – if the restrictions enhance the values of the lots for sale it is easy to infer such intention
  4. The purchaser of the plots must have bought with the knowledge that the restrictions were for the benefit of other lots in the general scheme
Commentary
  • The rigid application of the 4 concomitants was rejected in Re Dolphinwhich held that they were more of factual guidelines than rules of law, and that the only true test was the common intention and common interest of the purchasers
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