Tulk v Moxhay
(1848) 2 Ph 77418481 min read
The case in brief30-second read
- Facts
- Tulk sold Leicester Square gardens with a covenant to maintain as open garden. Property passed through several hands to Moxhay. Moxhay proposed to build on the land despite the covenant.
- Issue
- Whether a restrictive covenant on land can bind a subsequent purchaser who had notice of it but was not party to the original covenant.
- Held
- Moxhay was bound. A purchaser who takes with notice of a restrictive covenant cannot disregard it. Equity enforces the restriction because the buyer took benefit of a lower price (reflecting the restriction) and cannot reject the corresponding burden.
- Principle
- Restrictive covenant binds subsequent purchaser with notice, even without privity of contract
Facts
- Tulk sold Leicester Square gardens with a covenant to maintain as open garden
- Property passed through several hands to Moxhay
- Moxhay proposed to build on the land despite the covenant
- Tulk sought injunction
Issue
- Whether a restrictive covenant on land can bind a subsequent purchaser who had notice of it but was not party to the original covenant.
Held
- Moxhay was bound. A purchaser who takes with notice of a restrictive covenant cannot disregard it. Equity enforces the restriction because the buyer took benefit of a lower price (reflecting the restriction) and cannot reject the corresponding burden.
Ratio decidendi
Where land is sold subject to a restrictive covenant, and a subsequent purchaser has notice, equity will enforce the covenant against the successor. The absence of privity of contract is irrelevant: equity acts in personam against the conscience of the purchaser who took with knowledge.
Exam use
How to use it in an answer
Foundational English authority adopted in S.40 TPA. Cite for any covenant question. Key line: "He who takes land with notice of a restrictive covenant is bound by it in equity."
Cite this
Citation
Tulk v Moxhay (1848) 2 Ph 774Reported: (1848) 2 Ph 774. This is an educational summary, not the judgment itself. Cite the reported version in professional or academic work.