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

Facts

• Tulk owned a vacant plot and surrounding houses in Leicester Square, London.
• In 1808, Tulk sold the vacant plot to Elms, including a deed covenant requiring the land to remain a garden with iron railings and granting Leicester Square inhabitants access, with residents covering access costs.
• The property passed through various owners and was eventually purchased by Moxhay.
• The conveyance to Moxhay did not expressly repeat the covenant, but he had knowledge of the original agreement at the time of purchase.
• Moxhay intended to build on the land, contrary to the covenant’s terms.
• Tulk, who retained interests in surrounding property, sought an injunction to restrain Moxhay from altering the garden.
• Lord Cottenham, then the MR, granted the injunction; Moxhay appealed the decision.

Issues

1. Whether a purchaser of land not party to the original covenant but with notice of it can be bound by the covenant in equity.
2. Whether the restrictive covenant, which does not run with the land at common law, can be enforced against subsequent owners through equitable principles.
3. Whether it would be inequitable for a purchaser with knowledge of the covenant to avoid its obligations.

Decision

• The Court of Chancery, per Lord Cottenham, upheld the injunction against Moxhay.
• It was held that a purchaser with notice of a restrictive covenant affecting land is bound by it in equity.
• The court rejected the argument that only original contracting parties are bound at law, instead applying equitable doctrines to bind successors with notice.
• The court determined that it would be unjust for a purchaser to evade obligations through transfer when purchasing with full knowledge of the covenant.
• The doctrine was not based on the covenant running with the land at law, but on the enforcement of equitable burdens where notice exists.

Legal Principles

• Restrictive covenants impacting land may be enforced in equity against successors in title who purchase with actual or constructive notice.
• The principle applies only to restrictive (not positive) covenants.
• Actual or constructive notice is essential: purchasers cannot ignore obligations of which they are aware.
• The decision distinguishes between common law rules on covenants running with the land and equitable enforcement based on notice.
• The passing of the burden of restrictive covenants in equity has since been integrated into the statutory regime, notably under the Land Registration Act 2002, requiring registration for enforceability.

Conclusion

Tulk v Moxhay established that restrictive covenants can bind subsequent purchasers with notice as an equitable obligation, marking a significant development in English property law and influencing statutory approaches to land registration and the enforceability of land use restrictions.