Emile Elias and Co Ltd v Pine Groves Ltd [1993] 1 WLR 305

Key point
  • This case was an affirmation of Elliston v Reacher‘s test of 4 concomitants for valid building schemes, which had been reduced to a test of common interest and common intention in Re Dolphin
Facts
  • Vendor divided land into 5 lots, which were sold to 4 purchasers, with one buying both lot 4 and 5
  • Lot 5 was not shown to other buyers in the general plan of their conveyances
  • 1, 4, and 5 entered covenants with the vendor not to erect more than one dwelling house
  • Owner of 1 (D) sought to build more than 1 house
  • C, owner of 3, sought to obtain an injunction
Held (Privy Council)
  • Injunction was denied; there was no building scheme
Lord Browne-Wilkinson

Requirements for building schemes

  • To prove a building scheme, you need to prove that the common vendor laid out a defined portion of land in lots for sale subject to restrictions which are consistent with a general scheme of development
  • Not only must the vendor define the area, purchasers within the area must know what that area is as they have to know the extent of their burden and benefit, otherwise there cannot be intention to create mutually enforceable rights
  • The covenants must be uniform as a purchaser will not have intention to accept the burden on this land unless he has reciprocal right against other purchasers
  • In mixed developments the rules within each category has to be consistent

Current case

  • Purchasers did not all know that lot 5 was part of the area
  • Lack of uniformity in covenants indicate that there was no intention to create reciprocally enforceable rights
Commentary
  • The reasoning placed the basis of the concomitants on the common intention of the purchasers
  • However, in Re Dolphin, it was held that a building scheme can arise even where ┬áthe site of the building scheme was not defined before sale
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