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Brief Fact Summary. The London County Council (Plaintiff) sought a writ of mandatory injunction to tear down three houses and a wall erected on plots, which were covenanted to be reserved for a roadway.
Synopsis of Rule of Law. In order to enforce a restriction through a covenant against the land, the covenantee must be seized of land adjacent to the land under the restriction such that the enforcement of the covenant will benefit the covenantee’s land.
Facts. In 1907, the Plaintiff entered into an indenture with Morris Joseph Allen, a builder, who was a fee simple owner of certain land, by which Morris for himself, his heirs and assigns, covenanted that he would not build on two green areas shown on a map which were to be reserved for the construction of roads by the London County Council. In 1911, three houses were built on one of the plots and a wall was built on the other plot. The Plaintiff then sued to have a writ of mandatory injunction issued, which would order the houses and the wall torn down as a breach of the covenant between Mr. Allen and the Plaintiff. The legal estate was in Morris, as mortgagee, and the equity of redemption was in Mrs. Allen who had taken title from Mr. Allen and his mortgagee Willocks, who had no notice of the restriction. The Defendants argued that the Plaintiff could not enforce the covenant against the assigns of Mr. Allen, whether the assigns had notice of the restriction or not, because the cov
enant was a personal covenant which did not run with the land. It was also argued that the covenant was in the form of a negative easement, which required a dominant and servient estate, and the Plaintiff did not own any of the land in question. Thus, the Defendants argued that the covenant amounted to an easement in gross, which did not run with the land, but terminated when the land was assigned to another by Mr. Allen.
Issue. Must the covenantee, under the doctrine of Tulk v. Moxhay, infra, have at the time of the creation of the covenant and afterwards, land for the benefit of which the covenant is created, in order that the burden of the covenant bind the assigns of the land?
Held. Yes. The appeal of Defendants Mrs. Allen and Mr. Norris allowed, and the appeal of Mr. Allen is dismissed (thus, the covenant is only enforceable against the covenantor).
The covenant in the case herein cannot be said to run at law, and if it is to be enforced, it must be enforced on some equitable principle similar to the equitable principle under which a negative covenant was enforced in Tulk v. Moxhay, infra.
In the case of Tulk v. Moxhay, there is no requirement that the covenantee be possessed of lands adjacent to the covenantor, even though in Tulk the covenantee did possess the lands and houses around the garden. The Tulk case proceeded on the question of the notice of subsequent purchasers of the lands under covenant. However, decisions after Tulk prescribe a different result for the case at bar.
The Plaintiffs must fail in their case here because they never had any land for the benefit of which this “equitable interest analogous to a negative easement” could be created.” The Plaintiff cannot sue, then, a person who bought the land with knowledge of the restrictive covenant who then disregards the covenant, because the subsequent purchaser of the land is not in privity of contract.
The court finds it regrettable that the public body (London County Council) should be prevented from enforcing a restriction on the use of property imposed for the public benefit against persons who bought the property knowing of the restriction, by the apparently immaterial circumstance that the public body does not own any land in the area.
Discussion. This case would have possibly decided differently in the United States. Public entities would be more apt, perhaps, to use the tools of eminent domain to gain the property in question.