Tulk v Moxhay is a landmark English land law case that decided that in certain cases a restrictive covenant can "run with the land" in equity. It is the reason Leicester Square exists today. On the face of it disavowing that covenants can "run with the land" so as to avoid the strict common law former definition of "running with the land", the case has been explained by the Supreme Court of Canada, in 1950 as "Covenants enforceable under the rule of Tulk v Moxhay, are properly conceived as running with the land in equity" which summarises how the case has been interpreted and applied in decisions across common law jurisdictions.
Facts
In 1808, Charles Augustus Tulk, the owner of several parcels of land in Leicester Square, sold one of the plots to another person who made a covenant to keep the Garden Square "uncovered with buildings" such that it would remain a pleasure ground. Over the following years the land was sold several times over, eventually to the defendant in a contract which did not recite the covenant. 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.
Judgment
found in favour of the plaintiff and granted an injunction to restrain the defendant from violating the covenant. The Court noted that if the agreement had been a contract instead of a covenant, it would have been enforceable. Therefore 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 a vertical relation is not needed for the burden of a covenant to run at equity. The case approved earlier decisions of the Vice-Chancellor, Whatman v. Gibson 9 196 and Schreiber v. Creed 10 Sim. 35.
Significance
Prior to this case, for covenants to run, that is for the covenantee to take enforcement action or obtain damages against a breach, the breach and covenant had to be one of two classes:
Be a breach by one of the original parties of a conveyance of the freehold and the parties remain the owner of at least part of the same estates at the time when the suit is brought; this is known as having privity of contract and of estate
Be a breach of a covenant imposed by a landlord against a tenant at the time of the original lease; this is known as having "vertical privity"; in this type of privity the covenants may be positive or negative and unless very inequitable are generally held to be binding.
After the case, instead of the first narrow privity of estate, any restrictive covenant chiefly needed satisfy four lesser requirements to bind the successors in title:
The covenant must be restrictive
At the date of the covenant, the covenantee owned land that was benefited by the covenant
The original parties intended the burden to run with the land to bind successors
The covenantor must take with notice of the covenant
The old vertical privity rules remain in respect of positive covenants. The extent of the rule was described in 1950 by Rand J of the Supreme Court of Canada in Noble v Alley as follows: And in the next paragraph distinguished from any application to the terms and circumstances of the covenant in question in that case:
