Facts of the Case
Tulk v Moxhay is a landmark decision in the Court of Chancery that revolutionized land law by creating a means for contractual promises to bind future owners of land. It serves as the foundational authority for the restrictive covenant, an equitable proprietary interest that allowed landowners to control the use of land long after they had sold it.
The dispute centered on a plot of land in London’s Leicester Square. In 1808, the plaintiff, Tulk, sold the Garden Square to a purchaser named Elms. As part of the conveyance, Elms entered into a covenant promising to maintain the ground in “neat and ornamental order” and, crucially, to keep it “uncovered with any buildings” so it could remain a site for leisure activities.
The land subsequently passed through a series of owners until it was purchased by the defendant, Moxhay. Although Moxhay was fully aware of the covenant’s existence at the time of his purchase, his deed did not contain the restriction, and he asserted that he was not bound by a contract to which he was not a party. Consequently, he made plans to build on the square, prompting Tulk to seek an injunction to prevent the breach.
The Judgment and Legal Reasoning
The court, led by Lord Cottenham, ruled that Moxhay was bound to comply with the covenant. The judgment relied heavily on the equitable doctrine of notice. Lord Cottenham reasoned that it would be inequitable for a purchaser to acquire land at a price potentially reduced by a restriction, only to then disregard that restriction to the detriment of the seller.
The court held that Moxhay’s knowledge of the covenant at the time of purchase gave rise to a new right in favor of Tulk.
By prioritizing the “conscience” of the purchaser who takes with notice, equity provided a solution to the common law’s refusal to allow the burden of a covenant to run with freehold land. This intervention transformed what was a mere personal contract into a proprietary right capable of binding third parties.
Legal Authority and Significance
Tulk v Moxhay established that the burden of a restrictive covenant can run with the land in equity. This offered middle-class landowners in the Industrial Revolution a way to protect the “amenity and value” of their neighborhoods from industrial encroachment, effectively acting as an early forerunner to modern planning law.
Over time, the decision was refined into a strict five-point test for determining when a burden will run in equity:
- The covenant must be restrictive (negative) in character: It must only require the owner to “passively not act” rather than spend money.
- The covenant must “touch and concern” the land: It must affect the nature, quality, or mode of user of the land rather than being purely personal.
- There must be land capable of benefiting: The “dominant land” must be identifiable with reasonable certainty at the time of the grant.
- The burden must be intended to run: Under Section 79 of the LPA 1925, there is now a statutory presumption of this intention unless the contrary is expressed.
- Compliance with registration/notice: In modern law, the burden must be protected by a notice on the charges register (for registered land) or a Class D(ii) land charge (for unregistered land).
Limitations and Comparison to Austerberry
While Tulk v Moxhay was initially interpreted broadly, later courts—most notably in Austerberry v Oldham Corporation (1885) and Rhone v Stephens (1994)—strictly limited the doctrine to negative (restrictive) covenants. Successors cannot be compelled in equity to perform positive acts, such as spending money on repairs, because doing so would “flatly contradict” the common law rule that a person cannot be made liable on a contract unless they were a party to it.
Thus, the Tulk v Moxhay doctrine allows equity to deprive an owner of a right over property (like the right to build), but it cannot be used to compel an owner to exercise a right or incur a financial burden.
Related Cases
- Whatman v Gibson (1839) & Mann v Stephens (1846): These earlier decisions served as the foundation upon which the ruling in Tulk v Moxhay was built.
- Haywood v Brunswick Permanent Benefit Building Society (1881): A critical refinement of the Tulk doctrine, which established that equity will not enforce a covenant requiring the expenditure of money (a positive covenant) against a successor in title.
- London and South Western Railway Co v Gomm (1882): This case confirmed that the intervention of equity under Tulk is strictly limited to negative or restrictive stipulations and cannot be used to compel a successor to perform positive acts.
- Austerberry v Oldham Corporation (1885): One of the most significant cases following Tulk, it clarified that the equitable rule does not extend to positive covenants like road repairs. It established that equity will not compel a successor to undertake a financial burden simply because they had notice of a prior agreement.
- Cooke v Chilcott (1876): Originally, this case suggested that a positive burden might run in equity based on the Tulk doctrine, but it was subsequently overruled on this point by the Court of Appeal in Austerberry and Haywood.
- Morland v Cook (1868): This case is often discussed alongside Tulk; however, it was later explained as a situation where a deed effectively created a rent-charge issued out of the land rather than a positive covenant running purely in equity.
- Holmes v Buckley (1691): An ancient case sometimes cited in this context regarding a covenant to cleanse a watercourse, though later judges found its exact legal basis under the Tulk doctrine to be obscure.
- London CC v Allen (1914): This case added a vital requirement to the Tulk doctrine: for the burden to run in equity, the original covenantee must have owned land capable of being benefited at the time the covenant was granted.
- Rhone v Stephens (1994): The House of Lords explicitly refused to overrule Austerberry or extend the Tulk doctrine to positive covenants, noting that to do so would “flatly contradict” the common law rule that a person cannot be made liable on a contract they did not sign.
- Rogers v Hosegood (1900): Relevant for establishing that a restrictive covenant in equity must “touch and concern” the land of the original covenantee to be enforceable against successors.
- Swift (P. & A.) Investments v Combined English Stores Group plc (1989): Provides the modern three-stage test used to determine if a covenant “touches and concerns” the land, a prerequisite for the Tulk doctrine to apply.
- Wrotham Park Estate v Parkside Homes (1974): A key case regarding remedies for the breach of a Tulk v Moxhay restrictive covenant, where the court awarded damages in lieu of an injunction to avoid the “unpardonable waste” of demolishing already-built houses.
- Alexander Devine Children’s Cancer Trusts v Housing Solutions Ltd (2020): A recent Supreme Court decision concerning the discharge or modification of restrictive covenants, emphasizing that the court will not reward a “cynical breach” of a covenant even if it might serve a public interest.