Posts Tagged ‘The Law’

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.


Leicester Square circa 1790. British History Online

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.


Leicester Square, yesterday (08/03/2017).

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


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Magna Carta: Law, Liberty, Legacy at the British Library 13 March to 1 September 2015.

DSC07630Did you know that in 1941 Churchill and his war cabinet discussed presenting the USA with an original copy of Magna Carta as some sort of sweetener to induce them to enter WW2? The document in question wasn’t even in their gift, belonging as it still does to Lincoln Cathedral. Desperate stuff, in retrospect, but perfectly true.

The documents pertaining to this incident are on show in the 20C part of this new exhibition on Magna Carta at the British Library. The show, of course, commemorates the 800th anniversary of that totemic, world-famous historical document. It is the biggest such show ever staged.

Magna Carta, British Library

On show too are many other documents of similar or even greater moment.

As you’d expect we have original copies of Magna Carta from 1215, two of them: the Canterbury, which is virtually illegible except with specialist laboratory science viewing instruments; and the London. Missing are the Lincoln and the Salisbury which were united with the others in London for about a nano-second last month. But this matters little, for in addition we have several dozen other historical rights documents which – it can be argued – are as or more important than Magna Carta itself. These include the American Declaration of Independence, in Jefferson’s own hand; and the original American Bill of Rights. These have a security guard on them at all times, quite probably a condition of the loan from across the Pond. On show is also our own original Bill of Rights from 1689. But re-wind to the 13th century and there are rights documents which pre-date Magna Carta and ones which over the next 100 years or so re-new and reaffirm the bargain between the English monarch and the free men of his Realm, of whom there were relatively few early on.

But the important thing is that these deals led to more and more important, egilatarian and ultimately democratic agreements between the rulers and the ruled. Magna Carta, which was more properly known at the time as the Articles of the Barons on the Charter of Runnymede (“Carta de Ronemede”) led to the Forest Charter of 1225, the 1297 Statute Roll and the 1311 Ordinances of Edward II.

Inexorably on through the English Bill of Rights, American Independence, women’s suffrage, universal suffrage, colonial independence movements and to the 21st Century and Burma’s Aung San Suu Kyi. The exhibition proceeds through all of  these which are represented though a collection of well-chosen objects from swords to cartoons to commemorative teapots.

George Cruikshank, ‘Liberty Suspended’, 1817 © British Museum_500

George Cruikshank, ‘Liberty Suspended’, 1817 © British Museum

Votes for Women, 1911, British Library.

Votes for Women, 1911, British Library.

Many of our favourite freedom-fighters, politicians, martyrs and charlatans are represented here. Mine – John Wilkes – was, of course, all of these things. He certainly invoked Magna Carta in his time of need.

John Wilkes

John Wilkes

The structure is essentially a game of two halves. Magna Carta in its own time and the key players who seem almost like pantomime characters to us now: King John, the French King Philip Augustus, the great medieval pope Innocent III,  archbishop of Canterbury Stephen Langton, noteworthy troublemaker Simon de Montfort. But this was no panto. Supported by beautiful illuminated books from the Royal Collection and elsewhere, along with body parts of the King, seals, tally sticks, clerical vestments, this part of the show gives us the why and the how, the political and social landscape: the context. And it does it brilliantly.

A first draft of Magna Carta, known as the Articles of the Barons © British Library

A first draft of Magna Carta, known as the Articles of the Barons © British Library

King John hunting a stag with hounds, 14th century. British Library.

King John hunting a stag with hounds, 14th century. British Library.

The second half gives us, as we have noted above, the effects and influences of Magna Carta in the centuries following, down to to-day: how Magna Carta burst its own banks, so to speak. For as we are shown, Magna Carta was almost immediately quashed by Pope Innocent III, making it redundant. And while it has been superceded by greater acts and charters, all but three of its own clauses have been repealed. But what clauses they are. They involve the exclusive rights and privileges of the Church; the exclusive rights and privileges of the City of London; and most importantly of all the right of any free man not to be arrested without reason or to be tried except by his own peers.

Finally, though, the show includes unobtrusive (ie via headphones) video of academics and politicians giving contextual commentary. I’m usually wary of this sort of thing, but these are very good indeed.

Magna Carta London copy, 2015. British Library.

Magna Carta London copy, 1215. British Library.

Great Seal of King John, 1203 © Eton College Archives

Great Seal of King John, 1203 © Eton College Archives

This is a substantial show, a thoughtful show, the equal of the heady topic it represents and brilliantly executed. Standard ticket price is £12 and worth every penny. I’m delighted that under 18s go free, for these are important matters for young minds to know about and to think about.

It’s not the end of March yet and I may already have seen the London exhibition of 2015.

Check out the British Library’s special web space for Magna Carta 800. You can book your tickets from there too.



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