Re Dolphin’s Conveyance [1970] Ch 654

Key point
  • This case established a wider test of common intention and common benefit for building schemes in place of the test of 4 concomitants in Elliston v Reacher
  • Parcels of land were sold by the Dolphins, subject to restrictive covenants that regulated the building of houses
  • The Watts later took over the estate and continued the sale of
  • C sought declaration that the land they bought were no longer subject to the restrictive covenants
  • It was submitted by C that there was no building scheme because there was no common vendor and the site of the building scheme was not defined before sale
Held (High Court)
  • C’s claim was rejected; the land was subject to the restrictive covenants under a building scheme
Stamp J
  • C’s submission is wrong: to hold that only where you have concomitants of a building scheme can you give effect to the common intention found in the conveyances would be to ignore the wider principle of common interest and common intention expressed in the conveyances
  • On the facts, there is a common intention that that the restrictions are for the common benefit of the several purchasers and the vendor based on the fact that the vendors covenanted that the same restrictive covenants will be imposed on subsequent purchasers
  • There is no other possible reason for this other than that the benefits of the covenants should be for themselves and the several purchasers
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