Birdlip Ltd v Hunter & Anor

Birdlip Ltd v Hunter & Anor

A building scheme was established over the estate as defined by the 1908 plan. The covenants in the 1909 and 1910 Indentures were intended to be mutually enforceable by purchasers within the estate, not solely for the benefit of the vendor. The existence of substantially common covenants, the lotting of the estate, and the express reference to mutual benefit support this conclusion. The differences in plans and wording do not preclude the existence of a scheme. The claim fails and the counterclaim succeeds.

Parties
Claimant: Birdlip Limited; Defendant: Andrew Pennington Harvard Hunter; Defendant: Michelle Hunter
Jurisdiction
England and Wales
Judgment Date
24 March 2015
Procedural Posture
Chancery Trial and Upper Tribunal Application / Judgment After Trial
Outcome
Claim dismissed, counterclaim succeeds
Legal Topics
Restrictive Covenants, Building Schemes, Land Law, Mutual Enforceability
Property Law Equity Restrictive Covenants Building Schemes Land Law Mutual Enforceability

Case Brief

Summary, issues, holding and outcome

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Parties

Birdlip Limited

Claimant

Andrew Pennington Harvard Hunter

Defendant

Michelle Hunter

Defendant

Procedural Posture

Chancery Trial and Upper Tribunal Application / Judgment After Trial

Legal Issues

  1. 1 Whether a building scheme exists over the estate such that restrictive covenants are mutually enforceable by purchasers, including the defendants, against the claimant
  2. 2 Whether the restrictive covenants in the 1909 and 1910 Indentures enure for the benefit of other purchasers or only the vendor
  3. 3 Whether the estate was sufficiently defined for the purposes of a building scheme

Ratio Decidendi

A building scheme was established over the estate as defined by the 1908 plan. The covenants in the 1909 and 1910 Indentures were intended to be mutually enforceable by purchasers within the estate, not solely for the benefit of the vendor. The existence of substantially common covenants, the lotting of the estate, and the express reference to mutual benefit support this conclusion. The differences in plans and wording do not preclude the existence of a scheme. The claim fails and the counterclaim succeeds.

Court Disposition

Claim dismissed, counterclaim succeeds

Orders

  • Declaration that a building scheme exists over the estate as defined by the 1908 plan
  • Restrictive covenants are mutually enforceable by purchasers, including the defendants, against the claimant