A guest post by LH Member Colin Davey.
Forget your Silk, your Garrow’s Law, your Rumpole of the Bailey. For a real dose of legal stimulation, enter the world of conveyancing.
Perhaps you are not convinced. London renters might say that since conveyancing is related to home ownership, its more suitable entertainment connection should be Game of Thrones or some equivalent fantasy world.
However, those who have been lucky enough to own a freehold property will probably at some point have encountered that mysterious creature, the restrictive covenant.
Imagine the scene. Your property purchase is moving steadily forward, the survey has been done, and your mind is turning to whether that new king-size bed with built-in TV will manage the turn in the stairs, even in pieces ready for easy home assembly.
At that moment your solicitors present their report on title, and inform you gravely that the property is affected by an 1838 restrictive covenant under which the land cannot be used for glue making, rag boiling, beer brewing, or any other noxious or noisome activity.
Luckily your solicitors follow immediately with robust advice that the restriction is unlikely to have an adverse material effect on the value of the property, advice surely alone worth the entire fee they will earn from the transaction.
So does that mean restrictive covenants are not to be taken that seriously?
Not at all. We might change the scenario to a developer building an estate of new homes. As the developer goes forward phase by phase, it wants to ensure that homes already built and sold are not altered externally to damage the character of the estate (for which substitute damage the potential sale prices of subsequently built properties). Thus it imposes restrictive covenants covering what cannot be done to the earlier built homes.
Which brings us to Leicester Square and the 19th century case of Tulk v Moxhay.
The case may be old , but it is not to be dismissed for that; indeed, it might deserve the accolade groundbreaking.
First, some background. The area in and around modern day Leicester Square was during earlier years the subject of a labyrinthine web of conveyances, wills, codicils and settlements, peppered with periodic trips to the courts.
One aspect of the development of the Leicester Square area will be relatively well-known – Leicester House, built 1631-35 on the northern side of today’s square, for Robert Sidney, second Earl of Leicester.
The land used for the building was four acres acquired by Lord Leicester in 1630 from Hugh Audley. From his dates (1577-1662) we could presume this Hugh Audley to be the same as he who bequeathed to Mary Davies the 500 acres that became the foundation of the Grosvenor family’s London fortune.
The Tulk name first appears in the mid to late 1700s, when a property interest in the area was acquired by James Stuart Tulk, described as being of Tottenham, merchant.
In 1808 a successor, Charles Augustus Tulk sold the gardens of the square for £210 to Charles Elms, a dentist living around the square. The conveyance contained an obligation for Elms to maintain the gardens “uncovered by any buildings”.
Under Elms’s ownership, the gardens degenerated, to the evident disquiet of surrounding owners.
Various transmissions of ownership then took place – this is critical to the legal argument that followed. Finally in 1839 one John Inderwick, ivory turner, sold the gardens to Edward Moxhay.
Inderwick, who was subject to the obligation to maintain the gardens “uncovered by any buildings”, attempted to impose the same obligation on Moxhay. Moxhay refused to accept the obligation; this was not surprising, as Moxhay was a builder. After various negotiations, Moxhay eventually acquired the gardens free of the obligation.
After completion of his purchase, Moxhay started immediately to cut down trees in the gardens. Tulk responded by seeking an injunction to restrain Moxhay from despoiling or building on the gardens.
The case was heard in the Court of Chancery. Connoisseurs of Jarndyce v Jarndyce may prick up their ears at this point, but in this case at least, the parties appeared to have been spared the law’s delay.
Tulk’s problem was that he could not enforce the maintaining the gardens “uncovered by any buildings” covenant contractually against Moxhay. Up until Moxhay’s purchase there was a chain of indemnity. In other words, if there is A, B, C, D and E in the chain covering a piece of land, and a covenant is passed on each time the ownership of the land is transmitted from A down to E, then, in theory, at least, A can (indirectly) enforce the covenant against E by virtue of the chain.
I say in theory, because anyone can immediately see that the procedure is pretty clunky. What happens if, for example, C cannot be traced? Tulk wanted a direct remedy against Moxhay to stop him in his tracks, and this is what the court, presided over by the Lord Chancellor, gave him.
The court was able to reach this outcome through ruling that:
- Tulk retained other land in the area that could benefit from the restrictive covenant
- The covenant “touched and concerned” the land for which it had been imposed; in other words it related directly to the land
- The covenant had been intended to “run with the land” – here, Elms had entered into the original covenant both for himself and for future owners of the gardens.
- Moxhay had notice of the covenant.
The case has been overlaid by subsequent decisions refining the application of the law created by the court, and today notice to subsequent owners is achieved by registering the restrictive covenant against the ownership of the affected land when the covenant is first imposed. But the case is a good example of courts, counter intuitively to the perception today by many of how the judicial system functions, achieving an appropriate result.
The case of Tulk v Moxhay was not the end of aggravation concerning the use of Leicester Square Gardens, but that is enough of the law for now and for this article.
The case may not be as exciting as some that have gone through the courts, and the restriction discussed may not be as racy as the context for the same word in the film you can see promoted (if you peer carefully) in the photograph above of today’s Leicester Square, but I think that it is a story worth telling.
© Colin Davey