Facts
In 1808, Charles Tulk owned the garden in the middle of Leicester Square in London, along with several houses around it. He sold the garden to a man named Elms, who covenanted, for himself, his heirs and assigns, to keep and maintain the garden in an open state, uncovered with buildings, and in neat and ornamental order.
The garden was sold on several times. It eventually passed to Moxhay. His conveyance didn't repeat the covenant, but he knew about it. He announced that he intended to build on the garden. Tulk, who still owned houses on the square, sought an injunction to stop him.
Issue
At common law, the burden of a covenant didn't bind a later owner of the land who hadn't promised anything. Could equity nonetheless enforce the covenant against Moxhay, who had bought with notice of it?
Decision
Lord Cottenham LC granted the injunction. Moxhay was bound by the covenant and couldn't build on the garden.
Reasoning
The question wasn't whether the covenant ran with the land at law. It was whether a party who bought the land with notice of the covenant could use it in a way inconsistent with that covenant.
Lord Cottenham said it would be inequitable to allow that. If a buyer could ignore the covenant, the original seller could never safely sell part of their land and protect the rest. The buyer would pay less because of the restriction and could then sell on, free of it, for more. Equity wouldn't allow someone who bought with knowledge of the restriction to take advantage of it.
Why it matters
Tulk v Moxhay created the equitable doctrine allowing the burden of restrictive covenants to run with freehold land. It made private planning control possible, long before the modern planning system.
Later cases turned the decision into a set of requirements. For the burden to run in equity:
- The covenant must be negative in substance (Haywood v Brunswick Permanent Benefit Building Society (1881) 8 QBD 403).
- It must have been made to benefit land retained by the covenantee (London County Council v Allen [1914] 3 KB 642).
- The original parties must have intended the burden to run, which s 79 of the Law of Property Act 1925 presumes unless excluded.
- The buyer must have notice. Today that means registration: a notice on the register for registered land, or a class D(ii) land charge for unregistered land.
The benefit of a restrictive covenant can pass by annexation (including statutory annexation under s 78 of the Law of Property Act 1925, as interpreted in Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 WLR 594), by assignment, or under a building scheme.
By contrast, the burden of positive covenants doesn't run with freehold land (Austerberry v Oldham Corporation (1885) 29 Ch D 750; Rhone v Stephens [1994] 2 AC 310).
How it comes up in exams
Freehold covenant problems usually involve a sale of part, a covenant, and later sales of both pieces of land. Work through:
- Is the covenant positive or negative?
- Does the burden run to the current owner of the servient land (Tulk v Moxhay requirements)?
- Does the benefit run to the claimant (annexation, assignment, building scheme)?
- If the covenant is positive, consider workarounds: a chain of indemnity covenants, the benefit and burden principle (Halsall v Brizell [1957] Ch 169), or an estate rentcharge.
- Could the covenant be modified or discharged under s 84 of the Law of Property Act 1925?
Frequently asked questions
What was decided in Tulk v Moxhay?
The Lord Chancellor granted an injunction stopping Moxhay from building on Leicester Square garden. Although he wasn't a party to the original covenant to keep it open, he bought with notice of it, and equity wouldn't let him act inconsistently with it.
What are the requirements for the burden of a restrictive covenant to run?
The covenant must be negative in substance; it must have been made to benefit land owned by the covenantee; the original parties must have intended the burden to run, which s 79 of the Law of Property Act 1925 presumes; and the buyer must have notice, which today means the covenant must be protected by registration.
Does the burden of a positive covenant run with freehold land?
No. In Rhone v Stephens [1994] 2 AC 310, the House of Lords confirmed that positive covenants, such as a covenant to repair, don't bind successors in title, either at law or in equity.
How do you tell if a covenant is positive or negative?
Look at the substance, not the wording. If complying requires the owner to spend money or take action, it's positive. If it only requires them to refrain from doing something, it's negative.