Tulk v Moxhay
Encyclopedia
Tulk v Moxhay 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.
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 in privity of contract
and so was not bound by it.
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:
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
case that decided that in certain cases a restrictive covenant
Restrictive covenant
A restrictive covenant is a type of real covenant, a legal obligation imposed in a deed by the seller upon the buyer of real estate to do or not to do something. Such restrictions frequently "run with the land" and are enforceable on subsequent buyers of the property...
can "run with the land" (ie. a future owner will be subject to the restriction) in equity.
Facts
In 1808, the owner of several parcels of land in Leicester SquareLeicester Square
Leicester Square is a pedestrianised square in the West End of London, England. The Square lies within an area bound by Lisle Street, to the north; Charing Cross Road, to the east; Orange Street, to the south; and Whitcomb Street, to the west...
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 in privity of contract
Privity of contract
The doctrine of privity in the common law of contract provides that a contract cannot confer rights or impose obligations arising under it on any person or agent except the parties to it....
and so was not bound by it.
Judgment
Lord CottenhamCharles Pepys, 1st Earl of Cottenham
Charles Christopher Pepys, 1st Earl of Cottenham PC KC was a British lawyer, judge and politician. He was twice Lord Chancellor of Great Britain.-Background and education:...
found in favour of the plaintiff and granted an injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
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 the same interest in the property that the original promissor held.
External links
- Text of judgment from Bailii