Tulk v Moxhay (1848) 2 Ph 774

Chancery Division

Basic Facts: C sold a piece of land in Leicester Square to E, stipulating it must be kept as a pleasure garden. E conveyed it to D, who attempted to build on the land despite knowing about the covenant.

Issue for the Court: What can a restrictive covenant pass?

Held: The court held that restrictive covenants could bind successors in title, provided they had notice of the covenant.

Lord Cottenham LC

• A restrictive covenant is enforceable if:

• The purchaser knew of the covenant.

• The covenant benefits the land and is intended to protect the vendor’s retained land.

• The equity principle requires the covenant to be honored as if it was part of the land’s title.