Facts: PL conveyed land by deed to grantee, with the provision that the land be used for
a garden and pleasure ground (for a reasonable fee). It required the owner to maintain the
garden and iron ailing around it, not to cover the garden with any buildings, and to allow
Tulk’s tenants to use the garden on payment of reasonable rent. After several mesne
conveyances, land came by deed (bargain and sale) to DF, who took with knowledge of
the provision, but the provision was not in the deed itself. Master of the rolls denied
motion.
Issue(s): Under English property law, does a covenant that ran with the land to the
original grantee and then transferred through variable conveyances to a successive
grantee remain intact, when the one who took with notice of the original covenant, built
on the said land?
Holding: Motion denied with costs. This particular covenant did not run with the land,
and thus there is no way to enforce the original provision in the deed. A promise to
maintain a privately-owned park in an open state, uncovered by buildings, was
enforceable in equity against a successor-even though the promise could not have been
enforced as a real covenant.
Court’s Rationale/Reasoning: An equitable servitude, enforceable by an injunction in
this case, is a covenant respecting the use of land enforceable against successor owners or
possessors, regardless of its enforceability at law. Equity requires that the parties intend
the promise to run, that a subsequent purchaser have actual or constructive notice of the
covenant, and that the covenant touch and concern the land. Horizontal or vertical privity
are not essential in equity for the burden to run. The benefit runs to all assignees, and
possibly to adverse possessors. (this reasoning is taken from the book)
Rule: The court has jurisdiction to enforce a K between the owner of land and his
neighbor purchasing part of it, that the latter shall either use or abstain from using the
land purchased in a particular way.