Tulk v. Moxhay established the common law rule that restrictive covenants may “run with the land” in equity, meaning that a future owner of land may be enjoined from using the land in a particular way.
Charles Augustus Tulk owned several parcels of land in Leicester Square, London. He sold one of the parcels to a buyer, subject to a covenant to keep the square “uncovered with buildings” so that it would remain available for public use. That parcel was then sold several more times, but it ultimately ended up being owned by Moxhay, the defendant. Moxhay’s deed to the land did not mention the existence of the covenant, but he admitted that he had been given notice of it. Moxhay declared that he was not bound by the covenant because he was not in privity of contract with Tulk and that he intended to construct buildings on the square. Tulk, who still owned several other parcels around the square, sued for an injunction to enforce the covenant and prevent Moxhay from building.
The court ruled in favor of Tulk, issuing an injunction to prevent Moxhay from building on the square. The judge, Lord Chancellor Cottenham, noted that if the restriction was contained in a contract it would be enforceable by a court, and he held that “if an equity is attached to the property by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased.” Following this decision, restrictive covenants have been enforceable in equity so long as the original parties intended the covenant to bind successors to the land and the new buyer has notice of the covenant. Tulk v. Moxhay is the reason that Leicester Square still exists today.
Authorities Cited:
Mann v. Stephens (1846)
Citation(s): 15 Simons' Vice Chancellor's Reports 377
T. Smith owned three houses on a piece of land in Kent, England. He sold one of the houses to J.T. Scott and covenanted that a piece of land adjoining the house would forever remain and be used as a garden and that no house or other building would be built on it. The house was sold several more times, eventually being bought by Mann, the plaintiff. T. Smith later sold the adjoining land to H.W. Smith, entering into a covenant similar to that which T. Smith had entered into with J.T. Scott, which forbade the construction of any buildings on the land. That land was eventually purchased by Stephens, the defendant, who began to build a beer shop and brewery on the land. Mann filed suit for an injunction to enforce the covenant and prevent Stephens from building on the land.
The court granted the injunction and, on appeal, Lord Chancellor Cottenham (the same judge presiding over Tulk v. Moxhay) allowed the injunction to stand while the plaintiff pursued a separate action for legal relief. Moxhay argued that Cottenham’s decision in Mann v. Stephens showed that “the right of the Plaintiff to relief in equity depended upon, and was commensurate with, his right of action upon the covenant at law.” Cottenham responded in his opinion in Tulk v. Moxhay that “In the case of Mann v. Stephens before me, I never intended to make the injunction depend upon the result of the action: nor does the order imply it.”
Schreiber v. Creed (1839)
Citation(s): 59 English Reports 515; 10 Simons' Vice Chancellor's Reports 9
J. Pitt owned a large tract of land, known as Pittville, that was subdivided into several parcels. He intended to develop Pittville into a community with a spa at the northern end and various pleasure grounds, roads, and sites for houses. He sold several of the parcels to buyers, subject to restrictive covenants that spelled out specific restrictions as to the size, design, and placement of houses, to preserve the intended character of the community. One of the parcels was sold several times, ultimately being bought by Creed, the defendant. Creed sought to build a house on his parcel that would be closer to the road and the homes of his neighbors than the covenant allowed. Schreiber, the owner of a nearby parcel, brought an action to enforce the covenant and enjoin Creed from building so close to his property line. The court ruled that Creed was bound by the terms of the covenant, even though he was not in privity with either Schreiber or Pitt, the original owner. Schreiber v. Creed was affirmed by the court in Tulk v. Moxhay.
Whatman v. Gibson (1838)
Citation(s): 59 English Reports 333; 9 Simons' Vice Chancellor's Reports 196
John Fleming owned a piece of land in Ramsgate, England that he divided into several lots for houses. Fleming sold the lots to several purchasers. All entered into covenants that stipulated certain restrictions meant to preserve the “uniformity and respectability” of the houses in the development. These restrictions included height limitations for walls and fences, prescribed sizes for lawns, and a promise that no house would be used as a brewery, tavern, foundry, or inn. George Gibson purchased one of the lots from Fleming and built a house, which he later leased to Gomm, who turned the house into an inn called the Royal Victoria Hotel. Whatman, the owner of one of the other neighboring houses, filed suit to enforce the covenant and enjoin Gibson and Gomm from operating the inn. Gibson argued that the covenant was only binding against buyers who purchased their lots from Fleming under the agreement and that his lease to Gomm contained no such restrictions. The court held the covenant to “run with the land” to bind any subsequent purchasers or lessees.
The ruling in Whatman v. Gibson was upheld by the court in Tulk v. Moxhay. Moxhay’s attorneys admitted that Whatman was incompatible with their argument that a court of equity lacked jurisdiction to enforce a covenant by issuing an injunction. Instead, they pointed to Mann v. Stephens as supporting their position. Lord Chancellor Cottenham, who also wrote the opinion in Mann v. Stephens, held that Whatman was the correct precedent to follow and that Moxhay’s attorneys’ reading of Mann v. Stephens was incorrect.
The Duke of Bedford v. The Trustees of the British Museum (1822)
Citation(s): 39 English Reports 1055; 2 Mylne & Keen's Chancery Reports 552
In 1675, Lord William Russell and Lady Rachel Russell sold a seven-acre piece of land adjoining their property in the St. Giles district of London to Ralph Montagu, for 2,600 pounds. The deed contained a covenant promising that Montagu, his heirs, and his assigns, would construct a large mansion on the front part of the land and would never construct any other buildings on the back part of the land, preserving the unspoiled view from Southampton House, the Russells’ residence.
Mantagu built a mansion on the land, known as Montagu House, and left the rest of the land open, as promised in the covenant. In 1759, Montagu House and the land it sat on was purchased to serve as the home of the newly established British Museum. The museum planned to build a new wing on the back part of the land to house the Elgin Marbles, which had recently been removed from the Parthenon and brought to England. By this time, Southampton House had been torn down and Lord and Lady Russell’s land had become the property of the Duke of Bedford. The Duke filed for an injunction to enforce the covenant and restrain the museum from constructing the new building. The court refused to grant the injunction, reasoning that because the original parties entered the covenant with the intent to preserve the view from Southampton House, the non-existence of Southampton House at the time of the suit rendered the covenant inapplicable. This case is cited in Tulk v. Moxhay because even though the court refused to grant the injunction in this particular instance, it did not question the principle that covenants could bind future purchasers of land.