About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

57 N. Ir. Legal Q. 465 (2006)
Sublessees, Mortgages and the Doctrine of Tulk v Moxhay

handle is hein.journals/nilq57 and id is 475 raw text is: Sublessees, Mortgagees and the Doctrine of Tulk v Moxhay 465 SUBLESSEES, MORTGAGEES AND THE DOCTRINE OF TULK v MOXHA Y Alan Dowling, School of Law, Queen's University Belfast The doctrine of Tulk v Moxhay is an illustration of how complexity can be bred from simplicity. When Lord Cottenham granted an injunction to restrain Mr. Moxhay from building on Leicester Square in contravention of a covenant which his predecessor in title had made with Mr. Tulk, he did so on the basis that Moxhay had bought the land with knowledge of the covenant, and should not be allowed to act in defiance of it. Had the law continued on that basis, it would, whatever other objections might have been levelled against it, have had the merit of simplicity. Unfortunately, development of the doctrine in later decisions led to the present state of the law in which to describe the doctrine as simple would be a misrepresentation. One factor leading to the complexity that now surrounds the doctrine is the requirement that a plaintiff seeking to rely on the doctrine must show that he has land for the protection of which the covenant was made. That requirement is the background to the present discussion. What follows is an attempt to address the questions whether a lessor can rely on the doctrine to restrain a sublessee from acting in contravention of the covenants made by the lessee in the lease, and whether a mortgagee or chargee can rely on the doctrine to prevent a successor in title to a borrower from acting in breach of covenants by the borrower contained in the mortgage or charge. The authorities suggest an affirmative answer in each case. One leading text however has suggested that that view may be open to question. The Basis of the Doctrine The dictum of Jessel M.R. in London & South Western Railway Co. v Gomm,2 that the doctrine of Tulk v Moxhay' is either an extension in Equity of the rule in Spencer's Case4 to another line of cases, or an extension in Equity of the doctrine of negative easements, is well known. Though the pedigree of the doctrine may be doubtful, for the first half century of its life the doctrine's parentage did not cause any trouble. The doctrine enabled those to whom promises had been made, that land would not be used in particular ways, or that activities would not take place on land, to obtain injunctions to restrain persons who had not made those promises from acting inconsistently with them. Initially, the doctrine was based simply on the defendant having notice of the covenant. Later, the land was seen as subject to an equitable burden, and those who later acquired the land were affected by the burden, unless they were bona fide purchasers of a legal estate in the land without notice of the covenant.5 On either view, the absence of notice Megarry & Wade, The Law of Real Property (5th ed., 1984) p.776. The relevant sentence of the text does not appear in the current edition of the work. 2 (1881) 20 Ch. D. 562, at 583. 3 (1848) 2 Ph. 774; 1 H. & Tw. 105. 4 (1583) 5 Co. Rep. 16a. 5 For a chronological review of the authorities, marking the developments, see the judgment of Scrutton J. in London County Council v Allen [19141 3 K.B. 642.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most