Burden of a restrictive freehold covenant runs in equity (Tulk v Moxhay)
In 2005 Ruth sold part of her garden in Winchester, England, to Callum. In the transfer Callum covenanted, for himself and his successors in title, with Ruth for the benefit of her retained house, not to build more than one dwelling on the plot. The covenant was protected by a notice on the register of Callum's title. In 2025 Callum sold the plot to Brightside Homes Ltd, which now plans to build three houses. Ruth still owns and lives in her retained house.
Which of the following best describes whether Ruth can enforce the covenant against Brightside?
Choose one answer to see the reasoning.
Worked answer
Correct answer A: Yes, because the burden of a restrictive covenant runs in equity where it benefits the covenantee's land, was intended to run and is protected on the register.
THE RULE TO REMEMBER
The burden of a restrictive freehold covenant binds a successor in equity if it benefits the covenantee's land, was intended to run and is protected (by notice, in registered land); the remedy is equitable.
Burden of a restrictive freehold covenant runs in equity (Tulk v Moxhay)
At common law the burden of a covenant does not run with freehold land, but equity allows the burden of a restrictive (negative) covenant to bind a successor. In Tulk v Moxhay (1848) the purchaser of Leicester Square was restrained from building on it in breach of his predecessor's covenant, Lord Cottenham saying that the question is whether a party shall be permitted to use land inconsistently with a contract entered into by his vendor, with notice of which he purchased. The covenant here is negative (it restricts building), it was made for the benefit of Ruth's retained land, which she still owns, and it was expressed to bind successors. In registered land, notice is replaced by protection on the register: the covenant was entered by notice, so it bound Brightside when it was registered as proprietor. Because the burden runs only in equity, Ruth's remedy is an equitable one, typically an injunction.
Why B is wrong: That is the common law position; equity makes the burden of a restrictive covenant run under Tulk v Moxhay.
Why C is wrong: The burden runs only in equity, so the remedy is equitable (an injunction or damages in lieu), not common law damages.
Why D is wrong: A successor can be bound in equity without being an original party, provided the Tulk v Moxhay conditions are met.
Why E is wrong: Actual occupation is irrelevant to restrictive covenants; protection by notice on the register is what matters.
A little more practice done.
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A GOOD HABIT, DELIVERED
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