Tulk v Moxhay is a landmark
English land law
English land law is the law of real property in England and Wales. Because of its heavy historical and social significance, land is usually seen as the most important part of English property law. Ownership of land has its roots in the feudal ...
case that decided that in certain cases a
restrictive covenant
A covenant, in its most general sense and historical sense, is a solemn promise to engage in or refrain from a specified action. Under historical English common law, a covenant was distinguished from an ordinary contract by the presence of a se ...
can "run with the land" (i.e. a future owner will be subject to the restriction) in
equity
Equity may refer to:
Finance, accounting and ownership
* Equity (finance), ownership of assets that have liabilities attached to them
** Stock, equity based on original contributions of cash or other value to a business
** Home equity, the dif ...
. It is the reason
Leicester Square
Leicester Square ( ) is a pedestrianised square in the West End of London, England. It was laid out in 1670 as Leicester Fields, which was named after the recently built Leicester House, itself named after Robert Sidney, 2nd Earl of Leicester ...
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
Leicester Square ( ) is a pedestrianised square in the West End of London, England. It was laid out in 1670 as Leicester Fields, which was named after the recently built Leicester House, itself named after Robert Sidney, 2nd Earl of Leicester ...
,
['Leicester Square Area: Leicester Estate', ''Survey of London: volumes 33 and 34: St Anne Soho'' (1966), pp. 416-440. URL: http://www.british-history.ac.uk/report.aspx?compid=41119 Date accessed: 23 February 2012.] 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 (passed through successive owners), eventually to the defendant,
Edward Moxhay, in a contract which did not recite (nor expressly stipulate) the covenant.
The defendant, who was aware of the covenant at the time of purchase (had actual or constructive knowledge), refused to abide by the covenant as he claimed he was not
in privity of contract and so was not bound by it.
Judgment
Lord Cottenham LC
Charles Christopher Pepys, 1st Earl of Cottenham, (; 29 April 178129 April 1851) was an English lawyer, judge and politician. He was twice Lord High Chancellor of Great Britain.
Background and education
Cottenham was born in London, the second ...
found in favour of the plaintiff and granted an
injunction
An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in pa ...
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 (landlord-tenant) relation (privity of estate) 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 (or the other estates which existed in land at the time, apart from leasehold) and the parties remain the owner of at least part of the same estates at the time when the ''suit'' (today normally termed action or proceedings) 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 (as later slightly amended) in respect of positive covenants (stipulations requiring someone to do an action).
The extent of the rule was described in 1950 by
Rand J of the
Supreme Court of Canada
The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
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:
See also
*
English land law
English land law is the law of real property in England and Wales. Because of its heavy historical and social significance, land is usually seen as the most important part of English property law. Ownership of land has its roots in the feudal ...
*
English property law
English property law refers to the law of acquisition, sharing and protection of valuable assets in England and Wales. While part of the United Kingdom, many elements of Scots property law are different. In England, property law encompasses four ...
*''
Halsall v Brizell
''Halsall v Brizell'' 957Ch 169 is an English land law case, concerning the enforceability of a positive covenant, that is required positive obligations, in this case the obligation to pay money for upkeep and repair.
Facts
Homebuyers on a Live ...
''
957Ch 169
*
Judge-made law
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
**
Equity in law and ethics
**
Earl of Oxford's case
''Earl of Oxford's case'' (1615) 21 ER 485 is a foundational case for the common law world, that held equity (equitable principle) takes precedence over the common law.
The Lord Chancellor held: "The Cause why there is Chancery is, for that Mens ...
(1615)
**
Judicature Acts
In the history of the courts of England and Wales, the Judicature Acts were a series of Acts of Parliament, beginning in the 1870s, which aimed to fuse the hitherto split system of courts of England and Wales. The first two Acts were the Supre ...
(1873-1899)
Notes
{{reflist
References
*''Haywood v Brunswick Permanent Benefit Building Society'' (1881) 8
QBD 403
*''Marten v Flight Refuelling Ltd''
962
Year 962 ( CMLXII) was a common year starting on Wednesday (link will display the full calendar) of the Julian calendar.
Events
By place
Byzantine Empire
* December – Arab–Byzantine wars – Sack of Aleppo: A Byzantine e ...
Ch 115
*''Federated Homes Ltd v Mill Lodge Properties Ltd''
979
Year 979 ( CMLXXIX) was a common year starting on Wednesday (link will display the full calendar) of the Julian calendar.
Events
By place Byzantine Empire
* March 24 – Second Battle of Pankaleia: An Ibero-Byzantine expeditionary ...
EWCA Civ 3
9801
WLR 594,
9801
All ER
The All England Law Reports (abbreviated in citations to All ER) are a long-running series of law reports covering cases from the court system in England and Wales.
Established in 1936, the All England Law Reports are a commercially produced alt ...
371, 254
EG 39
*''Roake v Chandha''
984
Year 984 ( CMLXXXIV) was a leap year starting on Tuesday (link will display the full calendar) of the Julian calendar.
Events
By place
Europe
* Spring – German boy-king Otto III (4-years old) is seized by the deposed Henry II ...
Ch 40
984
Year 984 ( CMLXXXIV) was a leap year starting on Tuesday (link will display the full calendar) of the Julian calendar.
Events
By place
Europe
* Spring – German boy-king Otto III (4-years old) is seized by the deposed Henry II ...
1 WLR 40
*''Brunner v Greenslade''
971
Year 971 ( CMLXXI) was a common year starting on Sunday (link will display the full calendar) of the Julian calendar.
Events
By place
Byzantine Empire
* Battle of Dorostolon: A Byzantine expeditionary army (possibly 30–40,000 men) ...
1 Ch 993
*''
Westminster City Council v Duke of Westminster
''Westminster City Council v Duke of Westminster'' was a case between Westminster City Council and the 6th Duke of Westminster (and fellow family trust co-trustees) heard in November 1990. The dispute concerned 532 flats in Page Street, Vincent ...
''
9914 All ER 1388
External links
Text of the court-approved Law Report of the judgmentfrom Bailii
1848 in case law
1848 in British law
Covenant (law)
English land case law
Court of Chancery cases