--- title: "Tulk v. Moxhay" type: Landmark Case source: https://casebriefly.com/landmark-cases/tulk-v-moxhay --- # Tulk v. Moxhay Tulk v. Moxhay is the foundational case for the equitable enforcement of restrictive covenants (equitable servitudes) against subsequent purchasers who take with notice. The decision established that even when a covenant does not 'run with the land' at law, equity will enforce it against a successor who had notice of the covenant at the time of purchase. The case remains the cornerstone of equitable servitudes doctrine in both English and American law. ## Citation 2 Ph. 774, 41 Eng. Rep. 1143 (Ch. 1848) ## Year 1848 ## Court Court of Chancery (England) ## Facts Tulk sold a vacant garden in Leicester Square, London, to Elms, who covenanted to maintain the land as a garden square and not to build on it. The land was subsequently conveyed through several intermediate purchasers to Moxhay, who admitted he had notice of the original covenant but nevertheless planned to build on the property. Tulk sought an injunction to enforce the covenant against Moxhay. ## Procedural History The Court of Chancery granted the injunction in favor of Tulk, restraining Moxhay from building on the land in violation of the covenant. ## Issue Whether a restrictive covenant entered into by a prior owner of land can be enforced in equity against a subsequent purchaser who acquired the land with notice of the covenant. ## Holding The court held that a restrictive covenant will be enforced in equity against a subsequent purchaser who takes with notice of the covenant. The principle is based on the equitable notion that it would be unconscionable for a purchaser who knew of the restriction to ignore it. Notice, not privity of contract, is the key requirement for enforcement. ## Reasoning Lord Cottenham reasoned that if the covenant were not enforced, the purchaser's notice of it would be irrelevant, and the original covenantee would lose the benefit of the covenant simply because the land had been transferred. This result would be inequitable because the original purchaser received a lower price in exchange for accepting the restriction. If subsequent purchasers could ignore the covenant despite knowing about it, the value of the covenant would be destroyed. The Lord Chancellor emphasized that the critical question was whether the purchaser had notice at the time of acquisition, not whether there was privity of contract between the parties. ## Impact Tulk v. Moxhay created the entire field of equitable servitudes, providing a mechanism for enforcing land use restrictions against successors that complemented the rigid common law requirements for real covenants running with the land. The case is the foundation for modern restrictive covenant law, homeowner association rules, and planned community restrictions. Its notice-based approach has been adopted throughout the common law world. ## Key Quotes - 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. - 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. - Of course, the price would be affected by the covenant, and nothing could be more inequitable than that the original purchaser should be able to sell the property the next day for a greater price. ## Related Cases - neponsit-property-owners-v-emigrant-bank - sanborn-v-mclean - nahrstedt-v-lakeside-village - shelley-v-kraemer - willard-v-first-church-of-christ-scientist ## Exam Relevance Tulk v. Moxhay is essential for exam questions on equitable servitudes, restrictive covenants, and the distinction between legal and equitable enforcement of land use restrictions. Students should be prepared to analyze whether a covenant can be enforced in equity against subsequent purchasers and to compare the requirements for equitable servitudes (notice, intent, touch and concern) with those for real covenants running with the land at law. ## Study Tips - Understand the difference between real covenants (enforced at law, require horizontal and vertical privity) and equitable servitudes (enforced in equity, require notice). - Know that Tulk v. Moxhay makes notice the critical requirement for enforcement in equity. - Be prepared to distinguish between actual notice, constructive notice (recording), and inquiry notice. - Connect this case to modern applications such as homeowner association covenants and planned community restrictions. ## Doctrine Established Equitable Servitudes --- Source: [Tulk v. Moxhay — CaseBriefly](https://casebriefly.com/landmark-cases/tulk-v-moxhay)