Introduction
The case of Tulk v Moxhay (1848) is a foundational authority in the law of England and Wales concerning real property. It is credited with establishing the doctrine that the burden of a restrictive covenant can 'run with the land' in equity, binding future purchasers who have notice of it. Before this decision, the common law was restrictive, generally preventing covenants from binding anyone not party to the original agreement under the doctrine of privity of contract. This assignment will explain the significance of Tulk v Moxhay, beginning with an overview of the common law position it addressed. It will then detail the facts and judgment of the case itself before outlining how the principles established by Lord Cottenham have been developed and refined by subsequent case law and statute to form the modern law of restrictive covenants. It will be argued that Tulk v Moxhay was a crucial equitable intervention that responded to the needs of increasing urbanisation in the 19th century, although the broad principle it introduced required significant refinement to become the structured doctrine it is today.
The Common Law Position Before Tulk v Moxhay
At common law, the ability to enforce promises concerning land against successors in title was very limited. The central obstacle was the doctrine of privity of contract, which states that a contract cannot confer rights or impose obligations on any person who is not a party to the contract. While the benefit of a covenant could run with the land, the position regarding the burden was different. The rule, established in cases like Keppell v Bailey (1834), was that the burden of a covenant would not pass to a successor in title at common law, except in the specific instance of a landlord and tenant relationship.
In Keppell v Bailey (1834), a covenant to use a specific limestone quarry for an ironworks was held to be unenforceable against a subsequent purchaser of the ironworks. Lord Brougham LC was concerned that allowing burdens to run with the land would create an unmanageable and uncertain number of encumbrances on property, which he described as "novel incidents" that would hinder the free marketability of land (Gray and Gray, 2011). This rigid common law position created a significant problem. A landowner could sell part of their land and extract a promise from the purchaser not to do something (for example, not to build on it), but if that purchaser then sold the land to a third party, the original landowner could not enforce the promise against the new owner. This left the original owner’s land unprotected and devalued the promise they had received, undermining the purpose of the initial agreement. It was this gap in the law that the Court of Chancery sought to address.
The Decision in Tulk v Moxhay
The case of Tulk v Moxhay (1848) 2 Ph 774 provided the equitable solution. In 1808, the claimant, Charles Tulk, sold a piece of land in the centre of Leicester Square to a Mr Elms. The deed of sale contained a covenant that Elms, his heirs, and assigns would "at all times hereafter at his and their own costs and charges, keep and maintain the said piece of ground and square garden… in an open state, uncovered with any buildings". Over the following decades, the land was sold several times, eventually being purchased by the defendant, Mr Moxhay. The defendant’s deed of conveyance did not contain the same covenant, but he admitted that he was aware of its existence when he bought the land. Despite this knowledge, Moxhay intended to build on the land. Tulk, who still owned several houses around the square, sought an injunction to prevent the building work.
The case came before Lord Cottenham LC, who granted the injunction. He dismissed the relevance of the common law rule that the burden of a covenant did not run with the land. Instead, he based his decision on the principle of notice and conscience. He famously reasoned that the key question was whether a party could be permitted in equity to use the land in a manner inconsistent with the contract entered into by the person they had purchased from, especially when they had notice of that contract. He stated: "that this Court has jurisdiction to enforce a contract between the owner of land and his neighbour purchasing a part of it, that the latter shall either use or abstain from using the land purchased in a particular way, is what I never knew disputed" (Tulk v Moxhay (1848), p 777).
Lord Cottenham argued that it would be inequitable for the original seller, Elms, who likely purchased the land at a lower price because of the restriction, to then sell it on for a higher price without the restriction, leaving the original covenantee (Tulk) without protection. The core of his reasoning was that a purchaser who takes land with notice of a restrictive covenant should be bound by their conscience not to breach it. This decision established that, in equity, the burden of a negative covenant could bind a successor in title, provided they had notice.
The Modern Law of Restrictive Covenants
The principle articulated in Tulk v Moxhay was very broad and based on the general idea of conscience. Subsequent judicial decisions have refined this into a more structured set of rules that must be satisfied for the burden of a restrictive covenant to run in equity. These requirements are essential to the modern application of the doctrine (Dixon, 2021).
First, the covenant must be restrictive (or negative) in substance. It must prevent a landowner from doing something, rather than requiring them to take positive action or spend money. This was confirmed in Haywood v Brunswick Permanent Benefit Building Society (1881), where the court refused to enforce a covenant to keep buildings in repair against a successor, as this would require expenditure. The courts look at the substance, not the form, of the covenant to determine whether it is negative.
Second, the covenant must 'touch and concern' the land of the original covenantee. This means the covenant must benefit the land itself, not just the person who owns it. The test laid down by Lord Oliver in P&A Swift Investments v Combined English Stores Group Plc [1989] is now the leading authority. The covenant must affect the nature, quality, mode of use, or value of the covenantee's land and must not be expressed to be personal.
Third, at the time the covenant was made, the covenantee must have owned land that was capable of benefiting from the covenant. This means there must be a 'dominant tenement' (the land that benefits) and a 'servient tenement' (the land that is burdened). This rule was established in London County Council v Allen [1914], where the council could not enforce a covenant because it did not own any land that could benefit from it.
Fourth, the original parties must have intended for the burden of the covenant to run with the servient land. While this can be expressed in the deed, it is now largely presumed by statute. Section 79 of the Law of Property Act 1925 implies this intention unless a contrary intention is expressed in the conveyance.
Finally, the successor to the servient land must have notice of the covenant. This was the core of Lord Cottenham's reasoning. In modern land law, the 'doctrine of notice' has been replaced by a system of registration. For registered land, a restrictive covenant must be protected by the entry of a notice in the charges register of the servient title (Land Registration Act 2002, s 32). If it is correctly registered, it binds any person who acquires an interest in the land (Land Registration Act 2002, s 29). For unregistered land, the covenant must be registered as a Class D(ii) land charge under the Land Charges Act 1972.
Conclusion
In conclusion, Tulk v Moxhay stands as a landmark case in English land law. It created a vital equitable mechanism for the enforcement of restrictive covenants against successors in title, overcoming the limitations of the common law's privity of contract doctrine. The decision was a pragmatic response to the social and economic changes of the 19th century, allowing for planned urban development and protecting the amenities of landowners. However, the broad, conscience-based principle laid down by Lord Cottenham was not a complete or final statement of the law. As has been shown, it was the starting point for a century of judicial and legislative development that has produced the clear, structured set of rules that govern restrictive covenants today. While the modern doctrine is now governed by strict requirements and registration, its origin and fundamental justification—that it is inequitable for a purchaser with notice to ignore a promise that burdens the land—is owed entirely to Lord Cottenham's judgment in Tulk v Moxhay.
References
Dixon, M. (2021) Modern Land Law. 12th edn. Routledge.
Gray, K. and Gray, S.F. (2011) Elements of Land Law. 5th edn. Oxford University Press.
Haywood v Brunswick Permanent Benefit Building Society (1881) 8 QBD 403.
Keppell v Bailey (1834) 2 My & K 517; 39 ER 1042.
Land Charges Act 1972.
Land Registration Act 2002.
Law of Property Act 1925.
London County Council v Allen [1914] 3 KB 642.
P&A Swift Investments v Combined English Stores Group Plc [1989] AC 632.
Tulk v Moxhay (1848) 2 Ph 774; 41 ER 1143.
