Ratio Decidendi
A restrictive covenant — a negative obligation burdening land (e.g. not to build) imposed by a vendor on a purchaser — will be enforced in equity against a subsequent purchaser of the burdened land who took it with notice of the covenant. Equity acts on the conscience of a purchaser with notice: it would be unconscionable to allow that purchaser to buy land at a reduced price (reflecting the encumbrance) and then act free of the encumbrance. The key principle is that equity looks on as done that which ought to be done in conscience. This principle allowed restrictive covenants to run with the land in equity even though at common law a burden cannot pass with a freehold under the rule in Austerberry v Oldham Corporation (1885).
Hechos
Tulk sold a garden in Leicester Square to Elms, who covenanted to maintain it as a garden. The land passed through several hands until it was purchased by Moxhay, who intended to build on it. Moxhay had notice of the covenant.
Resumen de la sentencia
Lord Cottenham LC granted the injunction to restrain Moxhay from building on the garden. Tulk had sold a plot in the centre of Leicester Square to Elms with a covenant in the conveyance that Elms would not erect buildings and would maintain the garden in ornamental condition. The land was subsequently conveyed through several owners until it was purchased by Moxhay, who admitted notice of the original covenant but argued he was not bound by it as he was not a party to the contract between Tulk and Elms. Lord Cottenham LC rejected this. He reasoned that it would be impossible to hold that a purchaser with notice could stand in a different position from his vendor. The very price paid reflected the encumbrance; allowing Moxhay to ignore the covenant would be a fraud on those who sold (and presumably reduced the price for). The court granted the injunction to enforce the covenant. The decision created what became the doctrine of restrictive covenants in English land law: negative covenants can bind successors in title in equity (though not at common law). The subsequent development by Formby v Barker [1903] and London County Council v Allen [1914] refined the requirements (benefit in land of covenantee, etc.), and the modern rules are now partly governed by LPA 1925 and LRA 2002 registration.
Citas clave
"If an equity is attached to the property by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased."
— Lord Cottenham LC at 777
"It is said that, the covenant being one which does not run with the land, this court cannot enforce it; but the question is, not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he purchased."
— Lord Cottenham LC at 777
"Nothing could be more inequitable than that the original purchaser should be able to sell the property the next day for a greater price, in consideration of the assignee being allowed to escape from the liability which he had undertaken."
— Lord Cottenham LC at 778
Tratamiento posterior
Followed as the foundational authority on restrictive covenants in equity. Applied consistently and now encapsulated in the 'four requirements' for restrictive covenants to run: benefit in dominant tenement, covenant negative in nature, covenant touches and concerns land, and original parties intended covenant to run.
The principle was limited at common law — positive covenants do not run with freehold land: Halsall v Brizell [1957] Ch 169. The Tulk principle only extends to restrictive (negative) obligations in equity, not to positive obligations to spend money or do acts.
Applied in Rhone v Stephens [1994] 2 AC 310 (HL), which confirmed the distinction between negative (enforceable in equity via Tulk) and positive (not running at common law) covenants, rejecting an attempt to extend Tulk v Moxhay to positive obligations.
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