Is a caveat in issue sufficient to constitute a building scheme?

Alberta, Canada

The following excerpt is from Crump v. Kernahan, 1995 CanLII 9145 (AB QB):

Counsel for the respondents submitted that the caveat in issue constituted a building scheme (also known as a scheme of development in some legal texts). The elements of such a scheme have been pithily summarized in an often cited passage of Parker J. in Elliston v. Reacher, [1908] 2 Ch. 374 at 384: … 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 requisites are fulfilled, then, despite the applicant's submission to the contrary, an expression of annexation is not of the essence, and the covenant will stand without it.

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