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.
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.