A restrictive covenant forbids use of a house other than as a private dwelling. A later buyer wishes to open a shop. Which condition must be satisfied for the covenant to bind him under the rule in Tulk v Moxhay?
Answer and explanation
Correct answer: A. It must be negative, benefit retained land and be intended to run, with the burden protected by notice
- Step 1: Tulk v Moxhay makes restrictive covenants enforceable in equity against successors with notice.
- Step 2: The covenant must be negative, benefit land, be intended to run and the successor must have notice (a notice on the charges register in registered land).
Answer
It must be negative, benefit retained land and be intended to run, with the burden protected by notice.
Why not the others: A positive covenant cannot run; an oral covenant is insufficient; a mortgage deed is irrelevant.
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