• In the case of Emile Ellas and Co Ltd v Pine Groves Ltd 1993 1 WLR 305 it was held that a covenant created in 1938 did not create a building scheme and so the covenants were not mutually enforceable between subsequent owners of particular plots of land.

Facts of the Case

  • In 1993 a company divided a portion of its land into five lots sold to four purchasers. Lot five was shown on a plan annexed to the conveyance of lots four and five to the purchaser thereof, but not on the general plan annexed to the other conveyances.
  • Purchasers of lots one, four and five entered covenants with the company to not build anything other than one house dwelling on the land. Similar restrictions were imposed on lots one and three, but they entered substantially different covenants from those relating to lots one, four and five.
  • In 1948 a deed that was executed by the company and the four owners of lots one to five where at the request of the owner of lots four and five, who had built a house on lot four, the other parties released him from the restriction in his 1938 transaction as to permit him to erect a house on lot five.
  • Clause three of the deed saw that apart from that nothing therein contained should be deemed to release any of the parties. Or their successors in title from any of the obligations imposed on them under the 1938 conveyances.
  • The C became the owner of lot three and the D of lot one.
  • In 1983 the D started construction of more than one house on his land.
  • C issued proceedings to enforce against the D the restrictive covenant in 1938.

Issues in Emile Ellas and Co Ltd v Pine Groves Ltd 1993 1 WLR 305

  • The issues raised was whether the covenant created in 1938 was mutually enforceable between the owners of the lots.

Held by Court of Appeal (Privy Council)

  • The Court Appeal of Trinidad and Tobago dismissed C’s appeal.

Lord Browne-Wilkinson

Lord Browne-Wilkinson highlighted the requirements that need to be proved to create a building scheme:

  • Poof 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
  • Purchases within the area must know what that area is
  • Covenants must be uniform
  • The rules within each category must be consistent when dealing with mixed developments

Parker J

  • In my judgment, in order to bring the principles of Renals v. Cowlishaw (1878) 9 Ch.D. 125 and Spicer v. Martin (1888) 14 App.Cas. 12 into operation it must be proved (1) that both the plaintiffs and defendants derive title under a common vendor; (2) that previously to selling the lands to which the plaintiffs and defendants are respectively entitled the vendor laid out his estate, or a defined portion thereof (including the lands purchased by the plaintiffs and defendants respectively), for sale in lots subject to restrictions intended to be imposed on all the lots, and which, though varying in details as to particular lots, are consistent and consistent only with some general scheme of development; (3) that these restrictions were intended by the common vendor to be and were for the benefit of all the lots intended to be sold, whether or not they were also intended to be and were for the benefit of other land retained by the vendor; and (4) that both the plaintiffs and the defendants, or their predecessors in title, purchased their lots from the common vendor upon the footing that the restrictions subject to which the purchases were made were to enure for the benefit of the other lots included in the general scheme whether or not they were also to enure for the benefit of other lands retained by the vendors. If these four points be established, I think that the plaintiffs would in equity be entitled to enforce the restrictive covenants entered into by the defendants or their predecessors with the common vendor irrespective of the dates of the respective purchases. P.384-385.

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