Tulk v Moxhay [1848] EWHC J34 (Ch); (1848) 2 Ph 774; 18 LJ Ch 83; 1 H & Tw 105;
13 Jur 89; 41 ER 1143; 47 ER 1345; 50 ER 937; [1843-60] All ER Rep 9; 13 LTOS 21
SALE OF LAND, COVENANT, ENFORCEABILITY, EQUITY, BURDEN AND BENEFIT OF COVENANTS, RIGHT TO BENEFIT OF COVENANTS, NOTICE
Facts
The plaintiff used to be the owner of a vacant piece of ground in Leicester Square, as well as several of the houses forming the square. The plaintiff sold the vacant piece of ground to Elms in 1808. The deed of conveyance contained a covenant, according to which Elms, his heirs and assigns would at their own expenses keep the piece of ground and the square garden on it and the iron railings around the square garden in proper repair and that the inhabitants of Leicester Square, who were the plaintiff’s tenants, would be given keys at their own expense and access to the garden. The piece of land was subsequently conveyed from Elms to the defendant. However, the purchase deed did not contain a similar covenant, although he admitted that he was aware of the 1808 covenant. The defendant decided to change the character of the square garden and asserted a right to build upon it. The plaintiff, who remained the owner of several houses in the square applied for an injunction. This was granted by the Master of the Rolls. The defendant appealed on grounds that the covenant did not run with the land.
Issues
Did the covenant run with the land and thus, was it enforceable against the defendant?
Decision/Outcome
The appeal was dismissed.
(1) A covenant between vendor and purchaser on the sale of land, that the purchaser and his assigns will use or abstain from using the land in a particular way, is enforceable in equity against all subsequent purchasers with notice.
(2) This is so regardless of the question whether the covenant runs with the land so as to be binding on subsequent purchasers at law.
Updated 20 March 2026
This case summary remains legally accurate. Tulk v Moxhay (1848) continues to be the foundational authority for the equitable doctrine that restrictive covenants may bind successors in title who take with notice of the covenant. The core principles described — that a restrictive covenant is enforceable in equity against a purchaser with notice, irrespective of whether the covenant runs with the land at common law — remain good law and are regularly applied by English courts. Readers should be aware of subsequent developments that have refined and qualified the rule: in particular, the requirements for a restrictive covenant to bind successors were significantly elaborated in later cases, most importantly Haywood v Brunswick Permanent Benefit Building Society (1881) and London County Council v Allen [1914], and the modern position is also shaped by the Land Registration Act 2002, under which restrictive covenants affecting registered land must be protected by entry of a notice on the register (under ss. 29 and 32–34) to bind a purchaser for valuable consideration, replacing the older doctrine of notice in registered land contexts. The article does not address these limitations, which are important for a complete understanding of when the Tulk v Moxhay principle applies today.
