Tulk v Moxhay (1848) is the English Court of Chancery decision that made restrictive covenants on land enforceable against later buyers who purchase with knowledge of the restriction, even though those buyers never personally agreed to it. Lord Cottenham’s ruling took what had been treated as a private contract between two parties and turned it into an equitable obligation that runs with the land itself. Nearly two centuries later, the principle underpins homeowners’ association rules, conservation easements, and almost every subdivision covenant in the common law world.
The Leicester Square Dispute
In 1808, Charles Augustus Tulk sold a garden plot in Leicester Square, London, to a dentist named Charles Elms for £210. The conveyance required Elms and his heirs to keep the ground “in an open state uncovered by any buildings” and to maintain it “in neat and ornamental order.” Tulk owned surrounding properties, and the covenant existed to preserve the garden as an open space for the benefit of his remaining tenants.1British History Online. Leicester Square Area: Leicester Estate
The garden changed hands several times over the following decades. Eventually it reached Edward Moxhay, a builder from Threadneedle Street. Moxhay’s own deed omitted the restrictive language, but he had actual knowledge of the 1808 covenant before he acquired the property. He planned to erect “certain lines of shops and buildings” on the garden. Tulk, still owning the adjoining land, went to Chancery to stop him.1British History Online. Leicester Square Area: Leicester Estate
What Lord Cottenham Actually Held
Lord Cottenham granted the injunction and stopped the building work. His reasoning was short and practical. If an owner attaches a restriction to land and sells it, a buyer who purchases with knowledge of that restriction “can stand in no different situation from the party from whom he purchased.” Moxhay knew about the covenant. He could not pretend it did not exist simply because his own deed left it out.
The alternative, Lord Cottenham said, would be intolerable. If a buyer aware of a covenant could simply ignore it, then “it would be impossible for an owner of land to sell part of it without incurring the risk of rendering what he retains worthless.” Every protective condition would evaporate the moment the burdened land was sold on to someone willing to disregard it. Equity, in his view, would not let a purchaser use the form of a fresh deed to defeat the substance of an obligation they knew about.
What the Rule Requires Today
The decision did not create an unlimited power to tie up land forever. Later cases refined the doctrine into four conditions, all of which must be satisfied before a restrictive covenant will bind a successor in equity.
Two Identifiable Parcels of Land
There must be land that benefits from the restriction and land that bears its burden. In the Leicester Square case, Tulk’s surrounding properties were the benefited land and the garden was the burdened land. A covenant that benefits only a person, not a piece of land, cannot run with the land. A promise to buy groceries from a particular shop, for example, does nothing for the value or use of any neighboring property and would fail this test.
The Covenant Must Touch and Concern the Land
The restriction has to relate directly to how the burdened land is used, or to the value or enjoyment of the benefited land. Keeping a garden unbuilt clearly qualifies. A purely personal obligation does not. The test is whether the covenant would matter to any owner of the benefited land, or only to the specific person who negotiated it.
The Parties Must Have Intended It to Bind Successors
The original deed usually shows this intent through language like “for the benefit of heirs and assigns.” The 1808 covenant with Elms and “his heirs and assigns” left no doubt. Modern drafting treats covenants as intended to bind successors unless the language clearly limits them to the original parties.
The Buyer Must Have Notice
This was the decisive factor in the case itself, and it deserves its own section.
The Notice Requirement
Whether a restrictive covenant binds a new buyer turns on what that buyer knew, or should have known, at the time of purchase. Equity recognizes three forms of notice, any one of which is enough.
- Actual notice: The buyer directly knows about the covenant. Moxhay was in this category. The restriction had been communicated to him before he completed his purchase.
- Constructive notice: The covenant appears in the title records or other documents a buyer would encounter through a standard title search. A buyer who skips the search cannot claim ignorance.
- Inquiry notice: Visible circumstances on the property or in its documents would prompt a reasonable buyer to investigate. Failing to ask does not erase the obligation.
Under modern English land registration, restrictive covenants over registered land are protected by an entry on the register. The Land Registration Act 2002 provides the framework for noting these interests.2Legislation.gov.uk. Land Registration Act 2002 – Explanatory Notes A buyer who ignores the register takes the land subject to whatever restrictions appear there. Formal registration has largely replaced the older equitable inquiry, but the underlying idea is unchanged: you cannot close your eyes to a restriction and then claim it should not bind you.
Restrictive Covenants Only, Not Positive Ones
Tulk v Moxhay reaches only negative restrictions. Positive covenants, the kind that require the landowner to spend money or take action, do not run with freehold land in the same way. Courts developed a shorthand for the distinction called the “hand in pocket” test, drawn from Haywood v Brunswick Permanent Benefit Building Society (1881). If compliance requires the owner to reach into their pocket, the covenant is positive. If it only requires them to refrain from doing something, it is restrictive.
The garden covenant was a textbook restrictive one. Moxhay did not have to spend anything or maintain anything. He simply had to leave the land alone. Compare that with a promise to repair a shared fence, maintain a private road, or contribute to communal upkeep. Each is positive, and under Austerberry v Corporation of Oldham (1885) such obligations do not bind successors to a freehold. Conveyancers work around this gap using chains of indemnity covenants and long leases with enforceable positive terms, but none of these workarounds is as clean as the equitable enforcement Tulk v Moxhay provides on the restrictive side.
When These Covenants Stop Being Enforceable
Restrictive covenants are not permanent. Several routes can extinguish them or leave them unenforceable.
Statutory Modification or Discharge
Section 84 of the Law of Property Act 1925 lets the Upper Tribunal (Lands Chamber) modify or discharge restrictive covenants on application by the burdened landowner.3Legislation.gov.uk. Law of Property Act 1925, Section 84 Grounds include that the covenant has become obsolete because of changes in the character of the property or neighborhood, that it impedes a reasonable use of the land without giving practical benefit to anyone, or that the parties entitled to the benefit have agreed to release it.
Changed Conditions
A court may decline to enforce a covenant when the surrounding area has changed so much that the restriction no longer delivers its intended benefit. If a covenant was designed to preserve a residential neighborhood and the area has since become entirely commercial, enforcement serves no practical purpose.
Abandonment and Selective Enforcement
A benefited owner can lose the right to enforce a covenant through prolonged inaction. Widespread violations that go unchallenged for years can support a finding of abandonment. Selective enforcement, going after some neighbors while tolerating others, is particularly damaging to a claim because it looks like the kind of unfairness equity was designed to prevent.
Discriminatory Restrictions
Some of the most notorious uses of restrictive covenants involved racial segregation, especially in the United States. In Shelley v Kraemer (1948), the U.S. Supreme Court held that while private parties could technically write such covenants, judicial enforcement of them was state action that violated the Equal Protection Clause of the Fourteenth Amendment.4Justia. Shelley v. Kraemer, 334 U.S. 1 (1948) The practical effect was to strip these covenants of any enforceability in court. The Fair Housing Act reinforced the result by prohibiting discrimination in the sale or rental of housing based on race, color, religion, sex, familial status, national origin, or disability.5Office of the Law Revision Counsel. 42 U.S. Code 3604 – Discrimination in the Sale or Rental of Housing and Other Prohibited Practices Any restrictive covenant that conflicts with these protections is void.
Why the Case Still Matters
Tulk v Moxhay solved a problem that resurfaces every time a developer subdivides land and wants to preserve a neighborhood’s character. Without it, every protective covenant would last only until the first resale. HOA restrictions, conservation easements, and subdivision development agreements all rest on the principle Lord Cottenham articulated: a buyer who knows about a restriction and buys anyway is bound by it.
The case also fixed clear limits on its own reach. It covers only negative restrictions. It requires identifiable benefited land, not just a former seller with regrets. And it depends on notice, meaning owners who want their covenants to survive must ensure the restrictions are properly recorded. Those limits are what have kept the doctrine from becoming an unchecked power to control land use forever, while still giving property owners a real tool to protect what they retain.