Tulk v Moxhay (1848) 2 Ph. 774

Key point
  • Passing of the burden of restrictive covenants occurs only with notice of the transferee, although the requirement of notice has now replaced by the statutory registration regime under the Land Registration Act 2002
Facts
  • T sold land and the buyer promised that he and successors in title will keep the garden in its present form
  • M then bought the land and sought to build a garden despite knowing about the covenant before buying the land and had paid less for it
  • T sought to enforce the covenant
Held (Court of Chancery)
  • T’s claim allowed, M is bound by the covenant
Lord Cottenham LCĀ 
  • A purchaser with notice is subject to burden
  • If burden does not pass it would be impossible of an owner of land to sell part of it without incurring the risk of rendering what he retains worthless
  • The original purchaser should not be allowed to escape from the liability he has undertaken and sell the property the next day for a greater price to a purchaser with actual notice
  • No one purchasing with notice can stand in a different situation from the vendor
Commentary
  • The reasoning was based on preventing the unjust enrichment of the vendor
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