Tulk v Moxhay [1848] 2 Ph 774

• Tulk (T) sold a vacant plot of land in Leicester Square to E. E covenanted that he, his assignees and his heirs would “keep and maintain” the land in an open state, uncovered with any buildings.

• Moxhay (M) later received the land and threatened to build on it, against which T sought an injunction.

• This was granted by HL. 

Lord Cottenham LC

• If a Purchaser buys with notice of a prior undertaking to treat the land in some way, it would be inequitable for him not to so treat it. This contrasts with general common law of privity of estate.

• He draws no distinction between negative or positive easements.

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.

• Were this merely a common law agreement (e.g. if T were suing for damages) there could be no remedy, but since an equitable remedy is sought (injunction) the court can intervene to prevent inequitable conduct. 

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