302:... are properly conceived as running with the land in equity and, by reason of their enforceability, as constituting an equitable servitude or burden on the servient land. The essence of such an incident is that it should touch or concern the land as contradistinguished from a collateral effect. In that sense, it is a relation between parcels, annexed to them and, subject to the equitable rule of notice, passing with them both as to benefit and burden in transmissions by operation of law as well as by act of the parties.
28:
211:
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, in consideration of the assignee being allowed to escape from the liability which he had himself undertaken ...
311:
is not suggested that the ordinary inheritance by a child of the union would be affected. Not only, then, it is not a covenant touching or concerning the land, but by its own terms it fails in annexation to the land. The respondent owners are, therefore, without any right against the proposed vendor.
310:
But by its language, the covenant here is directed not to the land or to some mode of its use, but to transfer by act of the purchaser; its scope does not purport to extend to a transmission by law to a person within the banned class. If, for instance, the grantee married a member of that class, it
210:
It is said that, the covenant being one which does not run with the land, this court cannot enforce it, but 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, with
201:
to restrain the defendant from violating the covenant. The Court noted that if the agreement had been a contract instead of a covenant, it would have been enforceable. Therefore the covenant was enforceable at equity, that is, when the plaintiff seeks an injunction as opposed to damages. The case
174:
in central London, sold one of the plots to another person, who made a covenant to keep the Garden Square "uncovered with buildings" such that it would remain a pleasure ground. Over the following years the land was sold several times over (passed through successive owners), eventually to the
214:
That the question does not depend on whether the covenant runs with the land is evident from this, that if there was a mere assignment and no covenant, this Court would enforce it against a party purchasing with notice of it; for if an equity is attached to the property by the owner, no one
255:
Be a breach of a covenant imposed by a landlord against a tenant at the time of the original lease, which is known as having "vertical privity". In this type of privity, the covenants may be positive or negative and, unless very inequitable, are generally held to be
206:
That this Court has jurisdiction to enforce a contract between the owner of land and his neighbour purchasing part of it, that the latter shall either use or abstain from using land purchased in a particular way, is what I never knew disputed ...
243:
Be a breach by one of the original parties of a conveyance of the freehold (or the other estates that existed in land at the time, apart from leasehold) and the parties remain the owner of at least part of the same estates at the time that the
158:... are properly conceived as running with the land in equity"; the Canadian court's wording summarises how the case has been interpreted and applied in decisions across common law jurisdictions.
239:
Prior to this case, for covenants to run, that is for the covenantee to take enforcement action or obtain damages against a breach, the breach and the covenant had to be one of two classes:
260:
After the case, instead of the first narrow privity of estate, any restrictive covenant chiefly needed to satisfy four lesser requirements to bind the successors in title:
505:
182:
The defendant, who was aware of the covenant at the time of purchase (had actual or constructive knowledge), refused to abide by the covenant as he claimed he was not
643:
202:
stands for the proposition that a vertical (landlord-tenant) relation (privity of estate) is not needed for the burden of a covenant to run at equity.
277:
The old vertical privity rules remain (as later slightly amended) in respect of positive covenants (stipulations requiring someone to do an action).
666:
379:
341:
306:
The next paragraph distinguished from any application to the terms and circumstances of the covenant in question in that case:
479:
194:
103:
438:
716:
711:
358:
215:
purchasing with notice of that equity can stand in a different situation from the party from whom he purchased.
334:
701:
583:
460:
83:
696:
544:
539:
490:
449:
427:
369:
327:
706:
285:
151:
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On the face of it disavowing that covenants can "run with the land" so as to avoid the strict
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600:
521:
132:
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At the date of the covenant, the covenantee owned land that was benefited by the covenant.
8:
183:
87:
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639:
319:
54:
629:
527:
404:
90:(Under the cited case the Lord Chancellor refused a motion to dismiss the injunction)
150:'s former definition of "running with the land", the case has been explained by the
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can "run with the land" (i.e. a future owner will be subject to the restriction) in
516:
501:
416:
171:
140:
128:
248:(today normally termed action or proceedings) is brought; this is known as having
647:
550:
270:
The original parties intended the burden to run with the land to bind successors.
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27:
578:
534:
690:
290:
179:, in a contract which did not recite (nor expressly stipulate) the covenant.
176:
136:
620:
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281:
224:
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in 1950 as meaning that "covenants enforceable under the rule of
219:
The case approved earlier decisions of the Vice-Chancellor,
601:
http://www.british-history.ac.uk/report.aspx?compid=41119
349:
617:
Haywood v
Brunswick Permanent Benefit Building Society
681:
Text of the court-approved Law Report of the judgment
273:
The covenantor must take with notice of the covenant.
104:
Lord
Cottenham, Lord Chancellor of England and Wales
70:
None published. Court-authorised law report issued.
597:Survey of London: volumes 33 and 34: St Anne Soho
688:
280:The extent of the rule was described in 1950 by
197:found in favour of the plaintiff and granted an
636:Federated Homes Ltd v Mill Lodge Properties Ltd
667:Westminster City Council v Duke of Westminster
586: at p. 69, SCR 64 (20 November 1950)
335:
381:Contracts (Rights of Third Parties) Act 1999
595:'Leicester Square Area: Leicester Estate',
131:case which decided that in certain cases a
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328:
170:, the owner of several parcels of land in
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573:
571:
569:
298:Covenants enforceable under the rule of
689:
566:
480:Wrotham Park Ltd v Parkside Homes Ltd
323:
350:Cases and main statutes on covenants
439:Morrells of Oxford Ltd v Oxford UFC
13:
264:The covenant must be restrictive .
14:
728:
674:
250:privity of contract and of estate
603:Date accessed: 23 February 2012.
234:
627:Marten v Flight Refuelling Ltd
589:
359:Smith and Snipes Hall Farm Ltd
1:
610:
186:and so was not bound by it.
7:
315:
189:
10:
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599:(1966), pp. 416-440. URL:
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115:
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106:(1836–1841 and 1846–1850)
99:
94:
79:
74:
66:
50:
42:
34:
25:
20:
559:
540:Equity in law and ethics
491:Law of Property Act 1925
450:Law of Property Act 1925
428:Law of Property Act 1925
370:Law of Property Act 1925
161:
139:. It is the reason that
717:Court of Chancery cases
471:Easements Reform (2008)
461:Re Dolphin’s Conveyance
286:Supreme Court of Canada
152:Supreme Court of Canada
313:
304:
217:
184:in privity of contract
84:Prohibitory injunction
712:English land case law
579:Noble et al. v. Alley
545:Earl of Oxford's case
308:
296:
204:
168:Charles Augustus Tulk
660:Brunner v Greenslade
522:English property law
133:restrictive covenant
116:Restrictive covenant
702:1848 in British law
88:Master of the Rolls
229:Schreiber v. Creed
528:Halsall v Brizell
512:
511:
405:Halsall v Brizell
221:Whatman v. Gibson
195:Lord Cottenham LC
120:
119:
38:Court of Chancery
724:
697:1848 in case law
604:
593:
587:
575:
517:English land law
502:English land law
417:Rhone v Stephens
382:
344:
337:
330:
321:
320:
226:
172:Leicester Square
141:Leicester Square
129:English land law
95:Court membership
46:22 December 1848
30:
18:
17:
732:
731:
727:
726:
725:
723:
722:
721:
687:
686:
677:
656:Ch 40 1 WLR 40
654:Roake v Chandha
613:
608:
607:
594:
590:
576:
567:
562:
551:Judicature Acts
513:
508:
494:
484:
472:
465:
453:
443:
431:
421:
409:
397:
396:(1848) 2 Ph 774
385:
380:
373:
363:
351:
348:
318:
237:
192:
164:
86:granted by the
57:
12:
11:
5:
730:
720:
719:
714:
709:
707:Covenant (law)
704:
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675:External links
673:
672:
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638:EWCA Civ 3 1
633:
624:
612:
609:
606:
605:
588:
584:1950 CanLII 13
564:
563:
561:
558:
557:
556:
555:
554:
548:
542:
535:Judge-made law
532:
524:
519:
510:
509:
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489:
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477:
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275:
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258:
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236:
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191:
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163:
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143:exists today.
127:is a landmark
118:
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113:
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108:
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100:Judges sitting
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81:
77:
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52:
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23:
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9:
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682:
679:
678:
670:4 All ER 1388
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507:
503:
497:
492:
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463:
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451:
446:
441:
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419:
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407:
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395:
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393:Tulk v Moxhay
388:
383:
376:
371:
366:
361:
360:
354:
345:
340:
338:
333:
331:
326:
325:
322:
312:
307:
303:
301:
300:Tulk v Moxhay
295:
293:
292:
291:Noble v Alley
287:
283:
278:
272:
269:
266:
263:
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261:
254:
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232:
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216:
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208:
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200:
196:
187:
185:
180:
178:
177:Edward Moxhay
173:
169:
159:
157:
156:Tulk v Moxhay
153:
149:
144:
142:
138:
134:
130:
126:
125:
124:Tulk v Moxhay
114:
109:
105:
102:
98:
93:
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85:
82:
78:
73:
69:
65:
61:
56:
53:
49:
45:
41:
37:
33:
29:
24:
21:Tulk v Moxhay
19:
16:
665:
659:
653:
635:
626:
616:
596:
591:
577:
526:
478:
459:
437:
415:
403:
392:
391:
357:
309:
305:
299:
297:
294:as follows:
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279:
276:
259:
249:
245:
238:
235:Significance
231:10 Sim. 35.
228:
220:
218:
213:
209:
205:
193:
181:
165:
155:
145:
123:
122:
121:
80:Prior action
75:Case history
15:
683:from Bailii
553:(1873–1899)
175:defendant,
55:EWHC Ch J34
691:Categories
611:References
199:injunction
148:common law
67:Transcript
58:(1848) 41
646:371, 254
619:(1881) 8
506:covenants
483:1 WLR 798
166:In 1808,
51:Citations
662:1 Ch 993
642:594, 1
420:2 AC 310
362:2 KB 500
316:See also
256:binding.
227:196 and
190:Judgment
111:Keywords
582:,
493:s 84(1)
452:s 78(1)
430:s 79(1)
372:s 56(1)
284:of the
43:Decided
644:All ER
547:(1615)
531:Ch 169
464:Ch 654
442:Ch 459
408:Ch 169
384:s 1(1)
282:Rand J
137:equity
560:Notes
162:Facts
35:Court
504:and
500:see
246:suit
225:Sim.
62:1143
640:WLR
632:115
623:403
621:QBD
288:in
693::
650:39
648:EG
630:Ch
568:^
223:9
60:ER
343:e
336:t
329:v
252:.
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