## Facts

- An owner of properties surrounding Leicester Square conveyed the central garden plot subject to a covenant that it remain an open square garden and “uncovered with buildings.”
- The seller retained nearby houses, whose value and amenity depended on the square remaining open.
- The garden plot was later transferred multiple times; subsequent purchasers had notice of the restriction.
- The defendant bought the plot without the restriction restated in his deed but admitted he had notice of the earlier covenant.
- The defendant proposed to build on the land and argued he was not bound because he was not a party to the covenant and there was no privity.
- The plaintiff sought an injunction in equity to restrain construction and enforce the restriction.

## Issues

1. Whether a restrictive covenant governing land use may be enforced in equity against a subsequent purchaser who has notice of the covenant, even if the covenant does not run with the land at law and there is no privity of contract.
2. Whether allowing a purchaser with notice to disregard the restriction would be inequitable given the original bargain and its effect on value.

## Decision

- The Court of Chancery granted an injunction restraining the defendant from building on the land in breach of the covenant.
- The court held that a purchaser with notice of a restrictive covenant takes subject to the equitable obligation and cannot use the land inconsistently with it.
- The court treated the claim as equitable enforcement based on notice, not as an action on a covenant running with the land at common law.

## Legal Principles

- A restrictive (negative) land-use covenant can be enforced in equity against successors in title who take with actual or constructive notice of the restriction.
- Equity binds a purchaser’s conscience: when an equitable restriction is attached to property, a buyer with notice cannot stand in a better position than the seller.
- Lack of privity and failure of the covenant to run with the land at law do not bar equitable relief where the covenant is intended to bind successors and restricts use of the land.
- Injunction is the typical remedy to prevent violation of a restrictive covenant enforceable in equity.

## Conclusion

The court enforced a negative covenant to keep land as an open garden against a later purchaser who had notice, holding that equity will restrain use inconsistent with the restriction even when common-law rules of privity and running covenants would not allow enforcement.


Tulk v. Moxhay, (1848) 2 Ph. 774 (Ch.)