Tulk v. Moxhay
2 Philips 774, 41 End. Rep. 1143 (Court of Chancery, England 1848)
- Tulk owned a vacant lot and some nearby houses in Leicester Square in London. He sold the vacant lot to a guy named Elm.
- The sales contract specified that Elm, and all heirs and assignees, would maintain the vacant lot as a “pleasure garden,” and charge admission.
- This sort of requirement is now known as a covenant.
- The deed to the pleasure garden passed by divers mesne conveyances into the hands of Moxhay.
- Divers mesne is latin for “many hands” and basically means that Moxhay didn’t buy the land directly from Tulk, it was bought and sold bunch of times in between, but the Court isn’t going to bother to explain all the details because none of the intervening owners was important to this case.
- By the time Moxhay bought the land, the deed said nothing about maintaining the land as a garden.
- Moxhay admitted that he did know about the covenant.
- Moxhay decided that since he owned the land and nothing in the deed said anything about a pleasure garden, he could build whatever he wanted on it. Tulk sued in order to get an injunction, and force Moxhay to abide by the terms of the original agreement Tulk made with Elm.
- The English Court granted the injunction.
- The English Court felt that since the price of a parcel of land is affected by a covenant in the sales contract, it would be inequitable for that covenant to not run with the land. Otherwise the buyer could turn around and resell the land the very next day to someone else at a greater price with no covenant.
- There are two categories of covenants:
- Negative covenants are an agreement not to do something
- For example, not to build a house on the property.
- Affirmative covenants are an agreement to do something.
- For example, to maintain a garden.
- In general, courts (in England anyway) have held that negative covenants are assignable and run with the land, while affirmative covenants are not assignable and do not run with the land.
- In the US, affirmative covenants are sometimes enforceable as equitable servitudes.