Tulk v. Moxhay

"Tulk v. Moxhay" (1848) 41 ER 1143 is a landmark English case that decided that in certain cases a restrictive covenant can "run with the land" (ie. a future owner will be subject to the restriction) in equity.

Background

In 1808, the owner of several parcels of land in Leicester Square sold a plot to another party, making a covenant to keep the Garden Square "uncovered with buildings" such that it could remain a pleasure ground. Over the following years the land was sold several times over to new parties, eventually to the defendant.

The defendant, who was aware of the covenant at the time of purchase, refused to abide by the covenant as he claimed he was not privy to the contract and so was not bound by it.

Court's decision

Lord Cottenham found in favour of the plaintiff and granted an injunction to restrain the defendant from violating the covenant.

Prior to this case, for covenants to run, the original agreement had to be made by a landlord and tenant at the time that they entered into the lease, that is, there had to be privity of estate, also called "horizontal privity." The Court noted that if the agreement had been a contract instead of a covenant, it would have been enforceable. Therefore, the Court decided that 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 horizontal privity (privity of estate) is not required for the burden of a covenant to run at equity.In order for the burden to run, the covenant must satisfy certain requirements:
#It must "touch and concern" the land.
#The original parties must have intended that the burden run.
#The party to be burdened must have had notice of the covenant.
#The party to be burdened must hold or acquire some interest in the property that the original promissor held.

ee also

*English property law

External links

* [http://www.bailii.org/ew/cases/EWHC/Ch/1848/J34.html Text of judgment] from Bailii