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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.

Issue

Did the covenant run with the land and thus, was it enforceable against the defendant?

Held

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.


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