Tulk v Moxhay

Facts

In 1808, Charles Augustus Tulk, the owner of several parcels of land in Leicester Square, sold a plot to another party, making a covenant to keep the Garden Square "uncovered with buildings" such that it could remain a pleasure ground. Over the following years the land was sold several times over to new parties, eventually to the defendant.

The defendant, who was aware of the covenant at the time of purchase, refused to abide by the covenant as he claimed he was not in privity of contract and so was not bound by it.

Judgment

Lord Cottenham LC found in favour of the plaintiff and granted an injunction to restrain the defendant from violating the covenant. The Court noted that if the agreement had been a contract instead of a covenant, it would have been enforceable. Therefore the covenant was enforceable at equity, that is, when the plaintiff seeks an injunction as opposed to damages. The case stands for the proposition that vertical privity (privity of estate) is not required for the burden of a covenant to run at equity.

Significance

Prior to this case, for covenants to run, the original agreement had to be made by a landlord and tenant at the time that they entered into the lease, that is, there had to be privity of estate, also called "vertical privity." After the case, in order for the burden to run, the covenant must satisfy certain requirements:

1. The covenant must be restrictive
2. At the date of the covenant, the covenantee owned land that was benefited by the covenant
3. The original parties intended the burden to run with the land to bind successors
4. The covenantor must take with notice of the covenant

The extent of the rule was described in 1950 by Rand J of the Supreme Court of Canada in Noble v Alley as thus: