It was perhaps with unconscious irony that Leicester Square was selected by Waddingtons as one of the places on the Monopoly board that one can cover with houses and a hotel. In reality, building on the square has not been possible for centuries. Property lawyers (among many others) ascribe this to the decision of the Lord Chancellor in Tulk v Moxhay (1848) 2 Ph 774 – a case that is widely regarded as of fundamental importance in English land law.
The decision in Tulk, to the effect that in certain circumstances the burden of a covenant concerning the covenantee’s land can bind future owners of the covenantor’s land, has, in many cases, enabled the beneficiaries of restrictive covenants to enforce arrangements made centuries ago. The numbers are huge: Land Registry data indicates that 79% of registered titles – 13,081,491 properties – are subject to at least one restrictive covenant.
Tulk is therefore seen as the progenitor of a considerable industry. However, the decision rests on shaky foundations, and was considerably less effective in achieving its aim than is usually thought.
Mr Tulk and Mr Moxhay
In the 18th century, the Tulk family acquired properties on the south and east sides of Leicester Square, as well as the garden in its centre. In 1807, the Tulks sold the square garden, together with an obligation on the purchaser to keep the property “as a square garden and pleasureground, in an open state, uncovered with any buildings”.
The square was then sold on a number of times, finding itself in the 1840s in the hands of one Moxhay, a builder. By this time, the maintenance of the square had ceased to be the responsibility of any of the ground landlords of the surrounding houses, and had evidently degenerated. Moxhay had no incentive to spend money on its maintenance, and evidently wished to turn it to more profitable use by building on it.
Moxhay started to cut down the trees in the square, with the aim of erecting a bazaar on the cleared space. At this point, however, in 1848, Tulk sought an injunction to restrain Moxhay from building on it. Moxhay replied that the square was, and had been for many years, “in a foul, neglected and ruinous condition”, and was now “a most unsightly object, and a disgrace and reproach to the neighbourhood”.
Lord Cottenham
Mr Tulk’s claim to an injunction was bold. He was seeking to enforce the burden of a covenant despite the fact that the covenant had been made many years previously between different parties. Moreover, a similar approach had been rejected by the previous Lord Chancellor, Lord Brougham (a talented lawyer and prodigious scholar), only 14 years previously in Keppell v Bailey (1834) 2 My & K 517. One of the powerful points made by Lord Brougham concerned the public interest in not having property subjected by landowners to the perpetual fetters that restrictive covenants impose.
The new Lord Chancellor, Lord Cottenham, had no difficulty in disagreeing with his predecessor. His reasoning does not bear close examination, compared to the compelling reasons of Lord Brougham. Nevertheless, the decision of Lord Cottenham has prevailed (albeit restricted by later decisions to restrictive covenants).
So, should we therefore ascribe the unbuilt condition of Leicester Square to this decision? Well, no – and here the concluding saga of Leicester Square itself illustrates the point.
Tulk and Moxhay both died shortly after the judgment of the Lord Chancellor. The doubtless grieving but nevertheless astute widow of Tulk demanded that the garden should be repaired in accordance with the covenant given to her late husband in 1807. Arguments continued about the fate of the square, with Tulk’s heirs erecting a wooden hoarding around the property in 1873. Writing in 1879, Charles Dickens (Jr), said: “The condition of the square… went gradually from bad to worse, until it became one of the crying nuisances of the town. Squalid vegetation, mangy cats, and almost equally mangy street-boys took possession of the enclosure, which by degrees became the common dust-heap of the neighbourhood.”
Finally, in 1874, the outstanding freeholds were purchased by a third party, and the square was donated to the Metropolitan Board of Works, subject to it laying out a garden at its own expense. The square is now owned by the City of Westminster.
The current (relatively) pleasant, open and unbuilt nature of the square cannot therefore be ascribed to the restrictive covenants, which appear over the years to have benefited the legal profession rather than the hapless Tulks. Indeed, the case illustrates the problem of restrictive covenants that tie land down to unremunerative uses that provide no incentive to the owner to supply proper maintenance.
The same problem is illustrated by the facts of 89 Holland Park (Management) Ltd v Hicks [2013] EWHC 391 (Ch); [2013] PLSCS 66. The claimant owned a substantial property in Holland Park, while the defendant owned a narrow plot of land next door. The predecessors in title of the parties had entered into a deed in 1968 which required the defendant’s predecessor to obtain the consent of the claimant’s predecessor to proposed plans, drawings and specifications before making any application for planning permission to develop the plot of land. Although it was envisaged between those parties that the plot would be redeveloped to provide one house, no such house was ever built. The defendant now proposed to build a house, but the claimant withheld its consent. Litigation then ensued on the question of whether the claimant remained entitled to enforce the covenants against the defendant.
The claimant succeeded in the litigation, with the result that it remains entitled to enforce the covenants. The plot of land in the meantime remains overgrown and derelict, and will be likely to continue deteriorating for so long as the current impasse continues.
Restrictive covenants do not therefore necessarily afford the successors in title to the covenantee the amenity they might envisage. One might say that the solution to this is to take care with the drafting. Even so, there are obvious limits to the extent to which drafting alone can resolve the problem of the embittered successors in title to the original covenantor, particularly given that covenants requiring the expenditure of money cannot be enforced.
Guy Fetherstonhaugh QC is a barrister at Falcon Chambers
