Tulk v. Moxhay

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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.

[edit] 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.

[edit] Court's decision

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

The Court acknowledged that at common law a covenant is only enforceable between the original agreeing parties to the covenant. However, it was decided that it would be inequitable for the purchaser of the land to disavow the covenant when they were aware of the covenant prior to the purchase. Thus the burden of a covenant on a plot of land can "run" with it in equity despite the lack of privity between parties.

In order for the burden to run, the covenant must satisfy certain requirements: It must a) "touches and concerns" the land, and b) have been intended to be bound to the land.