Published: Wed, 07 Mar 2018
Tulk v Moxhay  41 ER 1143
Established that there are occasions in which equitable covenants can bind future purchasers of property and ‘run with the land’.
The claimant, Tulk, owned several properties in Leicester Square, London, and sold one such property to another, making the purchaser promise to not build on the property so as to help keep Leicester Square ‘uncovered with buildings’ and creating an equitable covenant. The purchaser subsequently sold the land and it underwent multiple transactions, and was eventually purchased by the defendant, Moxhay. Whilst Moxhay was aware of the covenant attached to the land at the time of the transaction, he claimed it was unenforceable as he had not been a party to the original transaction in which the covenant had been made.
Whether an equitable covenant limiting the use of a property could ‘run with the land’ and bind a future owner of the property.
The High Court, consisting of Lord Cottenham, found for Tulk, and passed an injunction to prevent Moxhay from building on the land. The covenant had been intended to run with the land at the time it was made, and all subsequent purchasers had been informed of its existence. Moreover, as a covenant amounts to a contract between a vendor and vendee, it is enforceable against a purchaser for value with either constructive or actual notice. As Moxhay had actual notice of the covenant, he was obligated to abide by it. Notably, the relevance of this decision decreased with the introduction of the 1925 Land Registration Act which made such covenants a registrable interest.
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