Tulk v. Moxhay

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Brief Fact Summary.

Plaintiff owned a garden with a statue, which he sold to another person with a covenant that the garden would be maintained as such, and would be opened to the residents of the square surrounding the garden. The Defendant is a subsequent owner of the garden. His deed did not mention the covenant, however, he did have knowledge of this agreement. Defendant sought to build onto the garden, which was not allowed under the covenant.

Synopsis of Rule of Law.

Defendant must comply with the covenant, because he had notice of the covenant when he purchased the land.

Facts.

Plaintiff filed a Bill for Injunction against the Defendant to prevent him from altering the character of the garden. The injunction was granted, so Defendant filed a Motion to Discharge the Injunction.

Issue.

Should the Defendant be allowed to use the land in a manner inconsistent with the contract entered into by the individual who sold Defendant the land, when the Defendant had notice of the restriction?

Held.

No. Motion to Discharge Injunction refused.
If the Defendant were allowed to ignore the covenant entered into between Plaintiff and Defendant’s predecessor in title then the result would be unfair, because an original purchaser (with restriction) could sell the land the next day for a higher price (without restriction).
So long as the Defendant, or any person purchasing with notice of a restriction, purchases the land with notice of a restriction, then the restriction will be considered an equity, which attached to the property. The subsequent purchaser cannot stand in a different position than the vendor of the property before them. This applies to all persons who buy the land under restriction after the covenant is made by the original purchaser.

Discussion.

This is an example of a negative covenant running with the land in England. Should this rule extend to positive covenants, or covenants which require affirmative action?