Property Law

Tulk v. Moxhay

(1848) 2 Ph 774; 41 ER 1143

Facts

Tulk owned several properties around Leicester Square in London, including a central garden.
He sold the garden to a purchaser who covenanted:
to maintain it as an open ornamental garden;
not to construct buildings upon it; and
to preserve it for the benefit of the surrounding properties.
The garden was subsequently transferred through several purchasers.
Moxhay eventually acquired it.
Moxhay was not an original party to Tulk’s covenant.
However, he purchased the garden with notice that its use was subject to the restrictive covenant.
He proposed using or developing the property inconsistently with that restriction.
Tulk sought an injunction preventing the proposed breach.

Whether the burden of a restrictive covenant could bind a later purchaser who was not a party to the original contract.
Whether absence of contractual privity prevented enforcement.
Whether notice of the covenant made it inequitable for the purchaser to disregard it.

At common law, the burden of a covenant ordinarily does not pass automatically to successors in title to freehold land.
Equity may nevertheless enforce a negative or restrictive covenant against a later purchaser where:
the covenant restricts the use of identifiable land;
it was intended to benefit other land retained by or connected with the covenantee;
the later purchaser acquired the burdened land with notice; and
enforcement is sought through injunction rather than damages based purely on contractual privity.
The doctrine generally applies to negative obligations, such as:
not building;
not conducting a particular activity;
not using land in a specified manner.
It does not ordinarily make a positive obligation requiring expenditure run with the land in equity.

The covenant was substantively negative.
Although it included language requiring maintenance of the garden, its central purpose was to prevent:
construction;
enclosure inconsistent with its open character; and
use that would destroy the benefit enjoyed by surrounding properties.
Tulk had sold the garden at a price and on terms reflecting this restriction.
Moxhay knew of the covenant before purchasing.
Allowing him to disregard it would produce an inequitable result:
an original purchaser could acquire land cheaply because of a restriction;
then sell it at a higher unrestricted value;
the later purchaser, despite notice, could defeat the arrangement merely because there was no direct contract with the original covenantee.
Equity refused to permit that circumvention.
The Court did not treat the covenant as transferring a conventional legal estate or easement.
Instead, it restrained the conscience of a purchaser who acquired the property with notice.
The restriction was connected with the land itself, not merely the personal preferences of the original contracting parties.
The principle later became central to Section 40 TPA in India:
a contractual obligation annexed to ownership;
enforceable against a transferee with notice;
but not against a purchaser for value without notice.

Moxhay was bound in equity by the restrictive covenant.
He was restrained from building upon or using the garden contrary to the covenant.
The case established that the burden of a negative covenant may run with land in equity against a purchaser with notice.
It remains the foundational authority for restrictive covenants under Section 40 TPA.