In 1808 Mr Tulk sold land at Leicester Square to Mr Elms for £210. The land was arranged as 'pleasure gardens'. As a condition of the sale, Mr Elms covenanted (promised) that neither he nor anyone who might own the land after him would build on it. After Mr Elms' died in 1822 the land changed hands a number of times. By 1848 it was owned by Mr Moxhay. Mr Moxhay was aware of the covenant entered into by Mr Elms but denied that he was bound by it. He sought to build on Leicester Square. Mr Tulk tried to stop him.
Where is it on the map?
At point C.
Who won?
Mr Tulk won. The Lord Chancellor ruled that Mr Moxhay could not build on the square as he was bound by Mr Elms' covenant. This was because the promise contained in the covenant related directly to the land (in legal language it 'touched and concerned' the land) and because Mr Moxhay knew about the covenant when he bought the land. It would have been unfair for him to have negotiated a low price for the land on the basis that it was not possible to build on it and then seek to deny that state of affairs once he had completed the purchase.
What's the principle?
Tulk v Moxhay is authority for the principle that the burden of a negative freehold covenant (a promise not to do something with freehold land, such as not to build on it) can be enforced against future owners of land even though they are not the original person that made the promise in the covenant.
As with most legal principles, there are a few further hoops to jump through. The covenant must 'touch and concern' the land. This is a notoriously difficult term to define but an example of a covenant that does not touch and concern the land would be one that contained a personal promise e.g. a promise to let a neighbour play your piano cannot be enforced against you by a person who buys your neighbour's house. Also, the original parties to the covenant must have intended that it would run with the land. In Tulk v Moxhay, this was apparent from Mr Elms' promise that future owners of the land would be bound by his promise. And finally, the purchaser must have had notice of the covenant, that is to say they must have been aware of it. But a purchaser cannot escape a covenant by turning a blind eye to the paperwork - the courts will treat a purchase as having notice of a covenant if he could have found out about it by making reasonable enquiries.
What's it like now?
In 1874 the land was purchased by Baron Grant, Member of Parliament for Kidderminster, on behalf of the Metropolitan Board of Works. Baron Grant paid for the ground to be refurbished and for a statue of William Shakespeare to be erected. Today, the land is owned and maintained by Westminster City Council.
The inscription on the fountain commemorates Baron Grant's gift.
It has been 205 years since Mr Elms made his promise to Mr Tulk and the land still has not been built on. To find out more about the history of Leicester Square, take a look at this excellent website: http://www.british-history.ac.uk/report.aspx?compid=41119
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