Tulk v Moxhay
A restrictive covenant binds a later purchaser of the land in equity if the purchaser had notice of it.
Facts
Mr Tulk owned the garden in the middle of Leicester Square in London, and the houses around it. In 1808, he sold the garden to Mr Elms, who covenanted, for himself and his successors, to keep it as an open garden in an uncovered state, uncovered with buildings. The garden passed through several hands to Mr Moxhay, whose purchase deed did not contain the covenant, but who knew of it. Mr Moxhay planned to build on the garden, and Mr Tulk sought an injunction.
Legal principle
Lord Cottenham LC granted the injunction. He said that it would be inequitable for a person who had bought land with notice of a covenant restricting its use, and who had probably paid less for it because of the covenant, to be able to use it in a way inconsistent with the covenant. The question is not whether the covenant runs with the land at law, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he purchased. The decision is the foundation of the law of restrictive covenants, later limited to negative covenants.
Related cases on freehold covenants
- Alexander Devine Children's Cancer Trust v Housing Solutions Ltd [2020] UKSC 45, [2020] 1 WLR 4783
- Austerberry v Oldham Corporation (1885) 29 Ch D 750
- Re Ballard's Conveyance [1937] Ch 473
- Bath Rugby Ltd v Greenwood [2021] EWCA Civ 1927
- Crest Nicholson Residential (South) Ltd v McAllister [2004] EWCA Civ 410, [2004] 1 WLR 2409
- Elliston v Reacher [1908] 2 Ch 374
- Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 WLR 594
- Halsall v Brizell [1957] Ch 169
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