Tulk v Moxhay (1848) 2 Ph 774
Facts
Tulk owned houses around Leicester Square and sold the central garden subject to an undertaking that it would remain open and be used as a garden. The restriction protected the enjoyment and value of the surrounding property he retained. The land passed through later owners to Moxhay, who knew of the restriction when he acquired it but proposed to use the land inconsistently with it. He argued that he had not personally made the original promise and that its burden did not bind him through the ordinary common-law rules.
Legal Issue
Could equity restrain a purchaser with notice from using land contrary to a restrictive covenant made by a predecessor, despite the absence of a personal contract with the claimant?
Held
Lord Cottenham upheld equitable enforcement of the restriction against Moxhay. The relevant question was whether a purchaser who acquired land with notice of the restriction could use it in a way his predecessor had promised to avoid. Allowing that would enable the original buyer to evade the restriction by selling and capture an increased price at the expense of the retained neighbouring land. An injunction could prevent the inconsistent use even though the covenant’s burden did not run at common law. The decision concerned a restrictive obligation affecting the use of land, not a general rule imposing every predecessor’s contractual liabilities on successors. Moxhay’s notice was central to the historical equitable analysis.
⭐ Legal Principle
Equity may enforce a restrictive covenant against a successor acquiring the burdened land with notice, although its burden does not run at common law. Tulk supplies the foundation of that doctrine; modern enforcement also requires the applicable benefit, burden and priority rules to be satisfied.
Significance
Tulk is the starting point for freehold restrictive covenants in equity. It explains how a land-use restriction can have consequences beyond the original contract and protect retained neighbouring land. Its principle must be placed within modern land law rather than applied through notice alone. Registration and priority rules may now determine whether a successor is bound. The distinction between restrictive and positive obligations also remains essential: the case does not generally make a successor responsible for spending money or carrying out a predecessor’s promises.
Common exam questions about this case
Why did lack of a direct contract not defeat Tulk’s claim?
The court used equitable protection of the land-use restriction rather than treating Moxhay as an original contracting party. He had acquired the land knowing of the restriction. Equity could prevent inconsistent use, so the absence of contractual privity did not alone answer the claim for an injunction.
Does Tulk make positive covenants bind every successor?
No. Its central doctrine concerns restrictive obligations governing use of land. A requirement to spend money or perform work raises different rules concerning positive burdens. An answer must classify the obligation and identify the relevant benefit and burden requirements, rather than treating every promise connected to land as equally enforceable.
Is actual notice alone sufficient in a modern registered-land problem?
No. Tulk explains the historical equitable basis, but modern priority and registration provisions must also be considered. A claimant cannot simply replace the applicable statutory protection requirements with proof that the purchaser knew about the covenant. Identify whether the land is registered and analyse the relevant statutory regime alongside the equitable doctrine.