What is the rule in Tulk v Moxhay?

What is the rule in Tulk v Moxhay?

Tulk v Moxhay is a landmark English land law case that decided that in certain cases a restrictive covenant can “run with the land” (i.e. a future owner will be subject to the restriction) in equity. It is the reason Leicester Square exists today.

What is Covenantor and Covenantee?

The covenantor is the landowner making the promise (the person burdened by the promise, Party B in the example) The covenantee is the landowner to whom the promise is made (the person with the benefit of the promise, Party A in the example) The dominant land is the land of the covenantee.

What is the difference between a covenant and a restrictive covenant?

Positive covenants are generally a contract between the original parties to the deed imposing the covenant and do not bind future land owners. A restrictive covenant limits or prevents the use of land in a specified way to the benefit of other land. Restrictive covenants are said to run with the land.

What is the austerberry rule?

The rule that the burden of positive covenants does not run in equity is commonly referred to as the “Austerberry rule” after the case of Austerberry v Oldham Corp,15 in which the rule was affirmed.

Are covenants legally binding UK?

Covenants usually arise in a contractual agreement between the buyer and seller of the land. So long as the covenant is correctly worded to ‘attach’ to the land itself, it continues to apply if the land is sold on, unless it has been modified or discharged. Covenants are legally binding and enforceable by the court.

What does touch and concern the land mean?

A covenant in a lease that inherently relates to the land or the manner it is used, or where it affects the landlord or tenant in their capacity as such under a lease. Restrictions on a tenant assigning the lease without the landlord’s consent. …

Is a Covenantor a guarantor?

Addtionally worth noting, is that a guarantor is different from a covenantor. A guarantor’s liability is secondary to that of the party whose obligation he is guaranteeing; a covenator’s liability is primary.

Can a Neighbour enforce a positive covenant?

A neighbour can only enforce a restrictive covenant on a property or land if they are the landowner that benefits from the covenant. A neighbour that has no direct connection to the restrictive covenant cannot enforce it in any way.

Can you enforce a positive covenant?

Unlike ‘negative’ or ‘restrictive’ covenants, the burden of a positive covenant does not ‘run’ with the land and so the promise cannot be enforced against subsequent owners or occupiers without structuring the transaction as a lease or by using one of the ‘conveyancing devices’ (see below) developed for that purpose.

What happens if you breach a positive covenant?

In the case of a breach of covenant, this means the insured would be compensated against loss, such as loss of value to his property, the costs of remedial works or the cost of legal action, should the beneficiary attempt to enforce the covenant.