Tulk v Moxhay is a foundational English land law decision which established that, in certain circumstances, a restrictive covenant can bind future purchasers of land in equity. The case departed from the rigid common law position on covenants and introduced a more flexible equitable approach based on notice and fairness.
It plays a significant role in explaining why some land-use restrictions continue to affect property even after ownership changes. The decision is also historically notable for its connection to the preservation of Leicester Square as an open space.
Background and Context in Tulk v Moxhay
Before Tulk v Moxhay, English common law imposed strict limitations on when covenants could “run with the land”. Enforcement generally depended on the existence of privity of contract or privity of estate. This meant that, aside from limited categories such as landlord–tenant relationships, obligations created by covenants usually bound only the original contracting parties.
As land frequently passed through multiple owners, these limitations created obvious practical problems, particularly where land-use restrictions were intended to benefit neighbouring land over a long period.
Equity, however, had long been concerned with preventing unconscionable conduct. The court in this case was required to consider whether a purchaser who acquired land with knowledge of a restrictive covenant should be permitted to ignore it merely because he was not a party to the original agreement.
Facts of Tulk v Moxhay Case
In 1808, Charles Augustus Tulk owned several parcels of land surrounding Leicester Square in central London. One of these plots was sold by Tulk to another purchaser. As part of that transaction, the purchaser agreed by covenant that the land would be kept “uncovered with buildings”, ensuring that the Garden Square would continue to exist as an open pleasure ground.
This covenant was not merely decorative; it was intended to preserve the character and value of the surrounding land owned by Tulk.
Over time, the land changed hands multiple times through successive sales. Eventually, it was purchased by Edward Moxhay. The contract under which Moxhay acquired the land did not expressly set out or restate the covenant. Despite this, Moxhay had actual or constructive notice of its existence at the time of the purchase.
Moxhay refused to comply with the restriction and proposed to build upon the land. He argued that the covenant was unenforceable against him because he was not a party to the original transaction in which the covenant had been made and therefore lacked privity of contract.
Issue
The central issue in Tulk v Moxhay was whether a restrictive covenant limiting the use of land could bind a subsequent purchaser in equity, even though that purchaser was not a party to the original covenant and there was no privity of contract between him and the covenantee.
Tulk v Moxhay Judgement
Lord Cottenham LC decided the case in favour of the claimant, Tulk. The court in Tulk v Moxhay granted an injunction restraining Moxhay from building on the land in breach of the covenant. The decision was based on equitable principles rather than common law rules governing covenants.
The court rejected the argument that enforceability depended solely on whether the covenant technically “ran with the land” at law. Instead, the focus was placed on whether it would be equitable to allow a purchaser, who acquired land with notice of a restriction, to act in disregard of it.
Reasoning of the Court in Tulk v Moxhay
Lord Cottenham made clear that equity has jurisdiction to enforce agreements regulating the use of land when fairness requires it. He observed that where a purchaser buys land with notice of an existing obligation, it would be inequitable to allow that purchaser to ignore the restriction and benefit from the land as though it were free from it.
The court emphasised that the covenant had been intended to affect the land itself, not merely to impose a personal obligation on the original purchaser. The price of the land would necessarily have reflected the restrictive covenant, and allowing a purchaser with notice to escape its burden would result in unjust enrichment.
Importantly, Lord Cottenham stated that the question was not whether the covenant ran with the land in a technical sense, but whether a purchaser should be permitted to use land inconsistently with an obligation attached to it, of which he had knowledge at the time of purchase. Equity would intervene to prevent such conduct.
The court also clarified that a vertical relationship, such as landlord and tenant, was not required for the burden of a restrictive covenant to be enforceable in equity. Instead, notice operated as the key mechanism.
Earlier decisions of the Vice-Chancellor were approved, confirming that these equitable principles were already present in the developing case law.
Remedy
The remedy granted was an injunction rather than damages. This reflected the equitable nature of the claim and the fact that the covenant was intended to control land use, not merely compensate for loss. The injunction prevented Moxhay from building on the land in violation of the covenant.
Conclusion
Tulk v Moxhay stands as a landmark authority demonstrating how equity intervenes to prevent unfair outcomes in land transactions. The case confirmed that restrictive covenants could bind future purchasers who acquire land with notice of an existing obligation. Rather than relying on formal concepts of privity, the court focused on fairness, intention, and knowledge.
By doing so, the decision reshaped the law of covenants and laid the foundation for modern doctrines governing land-use restrictions. Its principles continue to influence English land law and remain essential for understanding how equitable obligations attach to property across successive ownerships.