Folk law | RIP Messrs Tulk and Moxhay

'A sort of black smoke covers the city. Under this half-daylight ? 300,000 human beings are ceaselessly at work. The homes of the poor are scattered haphazard around the factories. From this filthy sewer pure gold flows. In Manchester civilised man is turned back almost into a savage' '“ Alexis de Tocqueville's description of industrialised Manchester.

The Great Exhibition of 1851 was a triumphant expression of British industrial superiority. The Industrial Revolution had paved the way for Great Britain becoming the workshop of the world but this consequently altered the physical appearance of the British Isles. The population of the countryside declined as people left to find work in the industrial towns and cities which grew in size making land scarce. Different trades jostled for control of the same urban land which led to conflict between certain incompatible land uses in the same locality.

A comprehensive public system of land-use control did not emerge until planning law was established in 1948. One hundred years earlier, the landmark case of Tulk v Moxhay [1848] 2 Ph 774 determined how a restrictive covenant could be enforced in equity against all subsequent purchasers in certain defined circumstances. In essence, Tulk created the modern day law of restrictive covenants, which are prized for their ability to individually control land use within the arena of private land law. It is important to note that planning control has not taken the place of restrictive covenants as planning standards are sometimes below the standards of restrictive covenants and certain types of private restrictions are impossible to put in the arena of public law (for example, covenants against keeping pigs and not to use the burdened property for immoral purposes). Thus, the champion of private land-use control is just as important today as it was in Victorian times. So how did it all begin?

A simple matter of contract

Restrictive covenants are promises made under deed not to do something on one's own land. In early common law, promises respecting the use of land were simple contracts that were not assignable and although the promise could be enforced between the original parties it could not be enforced against successors. During the reign of Henry VIII, a limited number of covenants could 'run with the land', provided certain requirements were met including the 'touch and concern rule', but they still remained contractual in nature, enforceable only in personam against the owner of the burdened land. The breakthrough came in December 1848 when Tulk was decided.

In 1808, the plaintiff in Tulk sold Leicester Square Garden or Pleasure Ground to Mr Elms. The purchaser, Elms, covenanted: 'At all times thereafter at his own costs keep and maintain the said piece of ground and square garden and the iron railing around the same in its then form, and in sufficient and proper repair as a square garden and pleasure ground, in an open state, uncovered with any buildings, in a neat and ornamental order; and that it should be lawful for the inhabitants of Leicester Square, tenants of the plaintiff, on payment of a reasonable rent for the same, to have keys at their own expense and the privilege of admission therewith at any time or times into the said square garden and pleasure ground.'

The burdened land then passed to the defendant, whose purchase deed contained no similar covenant with his vendor, but he admitted that he had purchased with notice of the covenant in the 1808 deed. The defendant, like many modern day developers, wanted to build on the open space. The plaintiff, who owned several houses in Leicester Square, applied for ?an injunction preventing such buildings works which was granted by the Master of the Rolls.

On appeal, it was held that the burden will run in equity, and be enforced in equity, against all subsequent purchasers with notice. Per Lord Cottenham, LC: 'If an equity is attached to property by the owner, no one purchasing with notice of that equity can stand in a different situation from that of the party from whom he purchased.' Henceforth, a contractual promise made under deed had the potential of becoming a property right and an asset of the owner of the land having the benefit.

Under threat

The Law Commission has drafted a new law of property bill which will signal the end of Tulk covenants should the draft find its way onto the statute books. From 1967 to 2011 the commission has tried to replace restrictive covenants with a new fangled concept called land obligation. While the original proposals have now been scrapped, thanks to the justifiable concern expressed by the profession, the latest recommendations of the Law Commission will replace 160 years of case law appertaining to an equitable tool that is a valued 'last line of defence' against unwanted development.

Many development projects have been thwarted by ancient restrictive covenants that have saved historic old buildings and greenfield land. In the interest of fairness and natural justice, restrictive covenants should remain inviolable.