UNIT 11

LICENCES

A licence in legal terms refers to permission granted by a party (the licensor) to another party (the licensee) to do something that would otherwise be considered unlawful. Licences can be contractual (arising from an agreement between the parties) or non-contractual (arising by operation of law). See the case of Thomas v. Sorrell (1673) 124 ER 1098 which established that a licence only makes an action lawful which would otherwise be unlawful; it does not transfer an interest in property, the case of Kufeji v. Kogbe (1961) All N.L.R. 113 which illustrates the principle that a licence is revocable at the will of the licensor unless it is coupled with an interest or is contractual with specific terms and the case of Savannah Bank Ltd. v. Ajilo (1989) 1 NWLR (Pt. 97) 305 which involved issues surrounding licences granted under statutory provisions. See also section 10 of the Land Use Act 1978 which provides for the Governor’s consent to any transaction involving the alienation of rights in land, which may include licences in certain contexts.

TYPES OF LICENCES

1. Bare licence: This is a simple permission to enter or use the licensor's property. It can be revoked at any time without notice.
2. Contractual licence: This type of licence arises from a contract and includes specific terms and conditions. It cannot be revoked arbitrarily and is subject to the terms of the contract.
3. Licence coupled with an interest: This occurs when the licensee has an interest in the property, such as a right to take something from the land (e.g., minerals). This type of licence is irrevocable as long as the interest exists.
4. Statutory licence: this is granted by statute, this type of licence allows individuals to perform certain acts that would otherwise be illegal. Examples include licences to operate businesses or perform certain trades.

CHARACTERISTICS OF LICENCES

1. Revocability: this is where most licences, particularly bare licences, can be revoked by the licensor at any time.
2. Non-transferability: this is where licences are generally personal and cannot be transferred without the licensor's consent.
3. No proprietary interest: this is where a licence does not grant the licensee any proprietary interest in the property.

RESTRICTIVE COVENANTS

A restrictive covenant is a binding stipulation written into a property deed or lease, restricting how the property can be used or what can be built on it. These covenants are designed to maintain certain standards or uniformity within a particular area. See the case of Tulk v. Moxhay (1848) 41 ER 1143 which established that restrictive covenants could bind subsequent purchasers of the land who had notice of the covenant, the case of Osunrinde v. Ajamogun (1992) 6 NWLR (Pt. 246) 156 which confirmed the enforceability of restrictive covenants in Nigeria, particularly where subsequent owners have notice of the covenant, and the case of Adebisi v. Oke (1967) NMLR 136 which involved the enforcement of a restrictive covenant in a lease agreement, illustrating the principles of notice and intention. See also section 45 of the Land Use Act 1978 which deals with covenants in leases granted by the Governor, which can include restrictive covenants.

TYPES OF RESTRICTIVE COVENANTS

1. Covenants running with the land: These covenants bind not only the current owner but also subsequent owners of the property.
2. Personal covenants: These convenants bind only the original parties to the covenant and do not affect subsequent owners.

ENFORCEMENT OF RESTRICTIVE COVENANTS

Restrictive covenants are enforced through legal actions, typically by property owners who are affected by a breach of the covenant. The enforcement mechanisms can include injunctions to prevent the prohibited action or damages for any breach. The requirements for enforceability includes the following;

1. Intention to bind successors: this is where the original covenant must have been intended to bind future owners.
2. Touch and concern the land: this is where the covenant must affect the land itself and not merely the personal interests of the parties.
3. Notice: this is where successive owners must have notice of the covenant, typically achieved through registration.

CONCLUSION

Licences and restrictive covenants are important legal mechanisms in property law, serving different purposes and governed by distinct principles. Licences provide permission to use property under certain conditions, while restrictive covenants impose limitations on the use of property to maintain certain standards or characteristics. Understanding the nuances of each and their enforceability under Nigerian law is crucial for property owners, legal practitioners, and stakeholders in the real estate sector.