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The Doctrine of Walsh v Lonsdale

Leases And Tenancies

As we did mention in our last column, we shall discuss the rule or doctrine of Walsh v. Lonsdale as it relates
to agreement for a lease. However in order to understand the doctrine of Walsh v. Lonsdale, we need to make
a brief reference to the origin and development of equity jurisprudence against the backdrop of which the case
of Walsh v. Lonsdale was decided.
In the early days of the evolution of the English Law, the Common Law Judges were obsessed with the
practice of strict adherence to precedent and excessive formalism with the unfortunate result that in some
instances a rigid adherence to the doctrine of judicial precedent would lead to repugnance and manifest
absurdity in their result. The law was harsh and sometimes produced unjust result.
Hence, litigants petitioned the King who was regarded as the fountain of justice when they felt that they were
not getting justice in their cases/matters. The King consulted with his most excellent advisor, the Lord
Chancellor, who was regarded as the keeper of the king’s conscience. The King them set up an
ecclesiastical committee headed by the Lord Chancellor and charged them with the responsibility of reviewing
the decisions of the King’s Court Judges whenever and wherever the aggrieved citizens/subjects
complained against the decisions of the King’s Court Judges.
One remarkable thing to note is that the Lord Chancellor’s committee were given power to review the
decisions of King’s Court Judges and to reach their decisions based on natural justice, morality, good
conscience and equity (i.e. fairness). Hence, equity in this literal sense simply means fairness. Whereas the
Common Law Judges were to make their decisions or determine their cases based on strict rules of law and
tabulated legalism, the committee of the Lord Chancellor were liberal and philosophical in their review of the
King’s Court decision, with the sole objective of doing real justice to the parties.
However, the King’s Court Judges did not like this development and besides there was a certain degree of
confusion owing to the simple reason that in some instances two opposing parties may be holding two
conflicting decisions – one from the King’s Court Judges and another from the Lord Chancellor’s
committee – yet in the same subject matter. The Lord Chancellor’s decision was referred to equity and
the King’s Court decision was referred to Law, but both seemed to command the force of the law and
authority of the land. Later the Lord Chancellor’s Committee was variously referred to as Chancery Court,
Court of Equity etc.
The King decided to resolve this conflict by causing the parliament to pass into the law one of the most
important legislations/Acts in the English legal system, which is the Supreme Court of Judicature Acts
1873-1875, which fused or merged the administration of the common law and equity i.e. (the two systems –
as administered by the King’s Court and the Court of equity) together and the 1873 – 1875 Acts made a
landmark provision in its Section 25, subsection 11, to the effect that where there is a conflict between the
principle of law and the doctrine of equity with reference to the same subject matter, the doctrine of equity
will prevail. See section 25 (11) of the Supreme Court of Judicature Acts 1873 – 75. Hence the case of
Walsh v. Lonsdale (1881) 21 ch. D. 9 seemed to be a test case of judicial interpretation and application of the
new law, i.e. the Supreme Court of Judicature Acts 1873- 75, as the case seemingly produced a clear case of
conflict.
The Doctrine of Walsh v. Lonsdale
Generally speaking, there are no formalities required in case of leases not exceeding three years, which means
that they may be granted orally. However, a formal deed of lease is required or necessary whenever a lease
exceeds three years. In fact, Section 3 of the Real Property Act 1845 provides that a lease exceeding three
years is void at law unless made by a deed. See also Section 4 of statutes of Frauds 1677 and Section 40 of
Law of Property Act 1925 both of which seem to have similar and identical provisions to the effect that every

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The Doctrine of Walsh v Lonsdale

transactions involving the sale or transfer of an interest in land must (shall) be evidenced in writing etc. There
is no doubt that "Leasehold" interest is an interest in land and hence leases come within the contemplation of
the aforementioned statues/legislations.
But note that in equity, such a lease that exceeds three years, but not made by deed may, in certain
circumstances, be treated as an agreement for a lease, which is enforceable, by an action for specific
performance, which is an equitable remedy. Note further that because of the harshness of the common law, the
only remedy available to a party for breach of contract is payment of monetary damages.
Therefore if a tenant, for instance, enters into possession under an oral agreement for a lease of more than
three years and acquires an enforceable right to call for the execution of a deed in his favour, he is in
practically the same position as if he had a deed of lease in so far as his rights and liabilities in relation to the
landlord are concerned. The rule is based on a principle or maxim of equity that equity deems as done
what/that, which ought to be done.
Thus, in Walsh v. Lonsdale (1882) 21 ch. D. 9, the defendant agreed to grant the plaintiff a lease of a mill for
seven years at a rent, the lease to contain such stipulations in an earlier lease at a fixed rent made payable
yearly in advance. The plaintiff was let into possession and paid quarterly, not in advance, for some two and a
half years. The defendant then demanded one whole year’s rent in advance, and put a distress. The
plaintiff thereupon brought an action for damages for illegal distress, for an injunction, and for specific
performance. It was held that the plaintiffs holding under the agreement was subject to the same right of
distress as if a lease had been granted, and that if, under the terms of the lease a year’s rent would have
been payable in advance on demand, a distress for that was lawful. One could see that in the eyes of equity,
rights and remedies are always mutual and reciprocal after all it is a cardinal principle of equity that equality is
equity.
The principle enunciated in Walsh v. Lonsdale has been consistently followed in most common law
jurisdictions. Hence in one decided case an unsealed agreement for a lease for five years was held in equity to
be as effectual between the parties to it as if it had been made under seal (i.e. Equity deems as done what
ought to be done).
Finally note that under no circumstances should one arrive at the slippery conclusion in light of the foregoing
that an agreement for a lease is as good as a lease in all respects. There is no doubt that despite " all said and
done" a lease by deed still has three inherent advantages – over an agreement for a lease.
These include the fact that:
The principle in the case of Walsh v. Lonsdale does not apply when equity will not grant specific performance
of the agreement in question.
Whereas a lease is enforceable against the whole world, a mere agreement for a lease confers only an equitable
right upon the leasee, which is not enforceable against a purchaser of a legal estate in the land concerned. The
doctrine of Walsh v. Lonsdale does not normally affect the rights of third parties.
Whereas a deed of lease is a "conveyance" within the meaning of the Conveyancing property Act 1881, so that
the leasee enjoys all the rights and privileges attaching to the land demised, this is not so in the case of an
agreement for a lease.
We are grateful to those who developed the equity jurisprudence. By virtue of equity jurisprudence, a
progressive-minded Judge with a teleological approach to interpretation and application of law can always
meander his way to look for justice rather than technicalities or strict tabulated formalism. The Court should
be more interested in substance than in mere form after all it is trite that justice can only be done if the
substance of the matter is examined. There is no doubt that reliance on technicalities leads to injustice. It is
needless to point out that law does not exist in a vacuum and as Saint Thomas Aquinas has said, that bad law
does not bind the conscience.
Clement Chigbo, Barrister at Law, practices as a Registered Associate in the Law Firm of Cassar and Co.,
Norfolk House, Frederick Street, Nassau, Bahamas. He is the author of a forth-coming book, "The Laws and
Regulations of Business and Investments in The Bahamas," and may be contacted at telephone 328-4695 or
email: clemsweiss@hotmail.com.

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