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Tulk v Moxhay
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Tulk v Moxhay
Tulk v Moxhay is a landmark English land law case which decided that in certain cases a restrictive covenant can "run with the land" (i.e. a future owner will be subject to the restriction) in equity. It is the reason that Leicester Square exists today.
On the face of it disavowing that covenants can "run with the land" so as to avoid the strict common law's former definition of "running with the land", the case has been explained by the Supreme Court of Canada in 1950 as meaning that "covenants enforceable under the rule of Tulk v Moxhay ... are properly conceived as running with the land in equity"; the Canadian court's wording summarises how the case has been interpreted and applied in decisions across common law jurisdictions.
In 1808, Charles Augustus Tulk, the owner of several parcels of land in Leicester Square in central London, sold one of the plots to another person, who made a covenant to keep the Garden Square "uncovered with buildings" such that it would remain a pleasure ground. Over the following years the land was sold several times over (passed through successive owners), eventually to the defendant, Edward Moxhay, in a contract which did not recite (nor expressly stipulate) the covenant.
The defendant, who was aware of the covenant at the time of purchase (had actual or constructive knowledge), refused to abide by the covenant as he claimed he was not in privity of contract and so was not bound by it.
Lord Cottenham LC found in favour of the plaintiff and granted an injunction to restrain the defendant from violating the covenant. The Court noted that if the agreement had been a contract instead of a covenant, it would have been enforceable. Therefore the covenant was enforceable at equity, that is, when the plaintiff seeks an injunction as opposed to damages. The case stands for the proposition that a vertical (landlord-tenant) relation (privity of estate) is not needed for the burden of a covenant to run at equity.
That this Court has jurisdiction to enforce a contract between the owner of land and his neighbour purchasing part of it, that the latter shall either use or abstain from using land purchased in a particular way, is what I never knew disputed ...
It is said that, the covenant being one which does not run with the land, this court cannot enforce it, but the question is not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, with notice of which he purchased. Of course, the price would be affected by the covenant, and nothing could be more inequitable than that the original purchaser should be able to sell the property the next day for a greater price, in consideration of the assignee being allowed to escape from the liability which he had himself undertaken ...
That the question does not depend on whether the covenant runs with the land is evident from this, that if there was a mere assignment and no covenant, this Court would enforce it against a party purchasing with notice of it; for if an equity is attached to the property by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased.
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Tulk v Moxhay
Tulk v Moxhay is a landmark English land law case which decided that in certain cases a restrictive covenant can "run with the land" (i.e. a future owner will be subject to the restriction) in equity. It is the reason that Leicester Square exists today.
On the face of it disavowing that covenants can "run with the land" so as to avoid the strict common law's former definition of "running with the land", the case has been explained by the Supreme Court of Canada in 1950 as meaning that "covenants enforceable under the rule of Tulk v Moxhay ... are properly conceived as running with the land in equity"; the Canadian court's wording summarises how the case has been interpreted and applied in decisions across common law jurisdictions.
In 1808, Charles Augustus Tulk, the owner of several parcels of land in Leicester Square in central London, sold one of the plots to another person, who made a covenant to keep the Garden Square "uncovered with buildings" such that it would remain a pleasure ground. Over the following years the land was sold several times over (passed through successive owners), eventually to the defendant, Edward Moxhay, in a contract which did not recite (nor expressly stipulate) the covenant.
The defendant, who was aware of the covenant at the time of purchase (had actual or constructive knowledge), refused to abide by the covenant as he claimed he was not in privity of contract and so was not bound by it.
Lord Cottenham LC found in favour of the plaintiff and granted an injunction to restrain the defendant from violating the covenant. The Court noted that if the agreement had been a contract instead of a covenant, it would have been enforceable. Therefore the covenant was enforceable at equity, that is, when the plaintiff seeks an injunction as opposed to damages. The case stands for the proposition that a vertical (landlord-tenant) relation (privity of estate) is not needed for the burden of a covenant to run at equity.
That this Court has jurisdiction to enforce a contract between the owner of land and his neighbour purchasing part of it, that the latter shall either use or abstain from using land purchased in a particular way, is what I never knew disputed ...
It is said that, the covenant being one which does not run with the land, this court cannot enforce it, but the question is not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, with notice of which he purchased. Of course, the price would be affected by the covenant, and nothing could be more inequitable than that the original purchaser should be able to sell the property the next day for a greater price, in consideration of the assignee being allowed to escape from the liability which he had himself undertaken ...
That the question does not depend on whether the covenant runs with the land is evident from this, that if there was a mere assignment and no covenant, this Court would enforce it against a party purchasing with notice of it; for if an equity is attached to the property by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased.
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