In which case was it confirmed that only the burden of negative or restrictive covenants is able to pass in equity?

Question

Quizplus · Accepted Answer

The Answer is The case that confirmed that only the burden of negative or restrictive covenants is able to pass in equity is Tulk v Moxhay (1848). In this landmark English case, the Court of Chancery established the principle that the burden of a restrictive covenant can run with the land and be enforceable against subsequent purchasers, provided certain conditions are met.

The case involved a piece of land in Leicester Square, London, which had been sold by Mr. Tulk with the condition that the buyer and any subsequent owners would maintain the land as an open space for the enjoyment of the public. When the land was later sold to Mr. Moxhay, who was aware of the covenant but intended to build on the land, Mr. Tulk sought an injunction to enforce the covenant.

The court, led by Lord Cottenham, held that even though covenants do not normally bind subsequent purchasers, in equity, a restrictive covenant can be enforced against a new owner if:

1. The covenant is negative (restrictive) in nature, rather than positive (requiring the new owner to perform some action).
2. The original parties intended the covenant to run with the land.
3. The subsequent purchaser had notice of the covenant at the time of purchase.

This decision established the principle that the burden of a restrictive covenant can pass with the land and bind future owners, provided these conditions are met. It is important to note that this principle applies in equity and is distinct from the common law, which generally does not allow the burden of covenants to pass to new owners.

In Which Case Was It Confirmed That Only the Burden