Construction of a Jamaican building scheme in the privy council

• Author: Sampson Owusu
• Position: Lecturer in Law, University of the West Indies, Cave Hill, Barbados
• Pages: 270-285

IN THE PRIVY COUNCIL

SAMPSON OWUSU*

A restrictive covenant may be enforced by a successor-in-title to the

original covenantee only if the benefit of the covenant has passed to

him under the rules of annexation, assignment or building schemes.1

The last head is the subject of this note. The English law on building

schemes as laid down in Elliston v. Reacher2 was modified by Baxter

v. Four Oaks Properties

Ltd.3

and Re Dolphin's Conveyance,* which

greatly reduced the stringency of the conditions set in the earlier case.

Though the law on building schemes in the Commonwealth

Caribbean does not materially differ from English law, the Privy

Council's opinion in Jamaica Mutual Life Assurance Society v.

Hillsborough5, on appeal from the Jamaican Court of Appeal, seems

to revert to the earlier law as established in Elliston v. Reacher.6 In

Hillsborough the Privy Council restated the principles defining building

schemes in terms suggesting that there was a need to show, among

other things, a common vendor as a condition precedent to the

establishment of a building scheme, without mention of Re Dolphin's

Conveyance, which had redefined the importance of this requirement,

holding it to be of only evidentiary significance. Furthermore, the

* Lecturer in Law, University of the West Indies, Cave Hill, Barbados.

1 Megarry J, would prefer the term "scheme of development", which he

considered in Brunner v. Greenslade [1971] 1 Ch. 993, 999 as being more

ample an expression than "building scheme" which he observed to have

"acquired a considerable but undeserved measure of currency". "Scheme of

development", according to him, is the genus of which 'building scheme' is

a species. See also Preston & Newsom's Restrictive Covenants Affecting

Freehold Land (London, Sweet & Maxwell, 1991, 8th edn., ed. Newsom.),

para. 2-58.

2 [1908] 2 Ch 374.

3 [1965] Ch. 816.

4 [1970] 3 W.L.R. 31.

5 [1989] 1W.L.R. 1101 (referred to as Hillsborough); suit No. E. 209 of 1983

(High Court) (unreported) and Civil Appeal No. 9/86 (Court of Appeal)

(unreported).

6 This tendency is equally manifested in Emile Elias & Co. Ltd. v. Pine Groves

Ltd. [1993] 1 W.L.R. 305, a case from Trinidad and Tobago.

270

restatement of the Privy Council in

Hillsborough

does not contain the

requirement of a prior division of the land into lots for sale. No

reference was made to either Baxter v Four Oaks

Properties

Ltd.,

which dispensed with this requirement, or Elliston v Readier,7 in

which the requirement of a prior division into lots had been laid

down.

The English cases of

Re Dolphin's

Conveyance9

and

Baxter

v

Four

Oaks

Properties

Ltd.9

have been hailed10 as having made significant

and welcome inroads into the formulation of the requirements of a

building scheme in

Elliston

v

Reacher.

Lack of reference to these two

cases in the opinion of the Board excites some disquiet, as it leaves us

with a number of perplexing questions which this note seeks to

explore. But, first, let us have a look at the facts of the case.

THE FACTS OF

HILLSBOROUGH

The root of title to the plots of land owned by the parties in

Hillsborough was traced to a 1913 title registered in the name of

Farquharson. This encompassed a number of parcels of land in the

parish of St. Andrew, including parcels known as (1) Norbrook (9423/4

acres),

(2) Constant Spring Estate (14823/4 acres) and (3) Retreat

(683/4

acres).

It appears that all three parcels were, prior to the various sales

to the parties to the suit, subject to various restrictions endorsed on a

certificate of title which was registered.11 Among these covenants

were covenants against subdividing the land into lots of less than one

acre each. The first and second objectors' plots were parts of lots two

7 [1908] 2 Ch. 374.

8 [1970] 3 W.L.R. 31.

9 [1965] Ch 816.

10 Preston and Newsom, Restrictive Covenants Affecting Freehold Land (London,

Sweet & Maxwell, 5th edn.), pp. 48-68; loc. cit.

n.

1

at paras. 2-68 and 2-69,

and see n.54, post.

11 Counsel in the trial court contended that "both the sections of land described

as 'Retreat' and described as 'Norbrook' were burdened with covenants in

accordance with these aims and were given the benefit of these covenants.

Further, the covenants which were created were at all stages endorsed on the

certificate of title and, as far as the evidence indicated, never left merely to

undertakings in interpersonal contractual documents, and those covenants were

often expressed to affect the land and the proprietors and were therefore never

couched in the form of personal covenants" :Re Constant Spring Estate,

Jamaica Mutual Life Assurance Society v. Robert Bolt, suit No. E 209 of

1983,

dated February 14, 1986 (unreported, University of the West Indies

Law Library).