Tulk v Moxhay

Facts

• Tulk sold Leicester Square gardens with a covenant to maintain as open garden
• Property passed through several hands to Moxhay
• Moxhay proposed to build on the land despite the covenant
• Tulk sought injunction

Issue

1. Whether a restrictive covenant on land can bind a subsequent purchaser who had notice of it but was not party to the original covenant.

Held

• Moxhay was bound. A purchaser who takes with notice of a restrictive covenant cannot disregard it. Equity enforces the restriction because the buyer took benefit of a lower price (reflecting the restriction) and cannot reject the corresponding burden.

Ratio Decidendi

Where land is sold subject to a restrictive covenant, and a subsequent purchaser has notice, equity will enforce the covenant against the successor. The absence of privity of contract is irrelevant: equity acts in personam against the conscience of the purchaser who took with knowledge.