Sale of land — Restrictive covenants — Building plots sold to different purchasers — Whether covenants mutually enforceable under building scheme — Privy Council upholding decisions of courts in Trinidad and Tobago — Intention to create building scheme not established
In 1983 a company owned an estate comprising approximately 90 acres, which was used exclusively as a golf course for the St Andrews Gold Club, Trinidad. The majority shareholding in the company was held by trustees of the golf club. In May 1938 the company made a general plan for part of the estate. They divided it into four building plots, which were sold to different purchasers. Each purchaser entered into restrictive covenants affecting the land some of which were differently worded to others. Lot 3 was now owned by the appellants. The respondents, who owned lot 1, were intending to build in breach of a covenant not to erect more than one dwellinghouse on the lot. The appellants alleged that the covenant was mutually enforceable among the owners of the plots by reason of a building scheme established in 1938. The courts in Trinidad and Tobago rejected that claim. The appellants took the matter to the Privy Council.
Held The appeal was dismissed.
1. The requirements to be satisfied to show the existence of a building scheme were that (a) both the plaintiffs and the defendants derived title under a common vendor; (b) previous to selling the land to which the plaintiffs and defendants were respectively entitled the vendor laid out his estate, or a defined portion of it for sale in lots subject to restrictions intended to be imposed on all the lots, and which though varying in details as to particulars were consistent only with some general scheme of development; (c) the restrictions were intended by the common vendor to be for the benefit of all the plots to be sold; they were also intended to be for the benefit of other land which the vendor retained for himself; and (d) both plaintiffs and defendants, or their predecessors in title, purchased their lots from the common vendor on 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 for the benefit of retained land: see Elliston v Reacher [1908] 2 Ch 374.
2. It was not sufficient that the common vendor had defined the area. In order to create a valid building scheme, the purchasers of all the land within the area of the scheme should also know what that area was. In this case there was one plan attached to all four 1938 conveyances but it did not show lot 5. On the evidence available if there was any intention to create mutually enforceable rights in a scheme area lot 5 must have been part of that area. As it had not been shown that the purchasers of lots 1 and 3 were aware of that fact, the requirements of a defined scheme area known to the original purchasers would not be satisfied.
3. The covenants imposed on lots 1, 4 and 5 differed in matters of substance from those imposed on lots 2 and 3. Lots 2 and 3 (in addition to the restriction against erecting more than one dwelling-house) contained a covenant restricting the use of the building when erected to use as a private dwellinghouse only. Lots 4, 5 and 1 contained no such restriction on the user. Again the owners of lots 2 and 3 entered into covenants not to cause nuisance to those occupying land in the neighbourhood whereas 4 and 5 were not subject to such covenants. The disparity mitigated against the finding of any intention to create a mutually enforceable local law based on reciprocity. Therefore, the second of the requirements laid down was not satisfied.
4. Generally there was no convincing proof that the parties’ intention was to produce mutually enforceable covenants. All the contemporaneous evidence of what the parties intended in 1938 was far from being consistent only with an intention to create a building scheme giving rise to mutually enforceable rights.
Alvin Fitzpatrick of the Trinidad and Tobago and English Bars (instructed by Philip Conway Thomas) appeared for the appellants; Michael de la Bastide SC of the Trinidad and Tobago Bar and Jonathan Harvey QC (instructed by Elborne Mitchell) appeared for the respondent.