In September 2014, a mural, attributed to the street artist Banksy, appeared as if by magic on the outside wall of a building used by a tenant as an amusement arcade.
What began as ‘street art’ quickly became the subject of a High Court battle between the landlord and tenant to determine the true owner.
The tenant occupies the building pursuant to a 20 year lease under which they agree to:
Keep the interior and exterior of the premises in good and substantial repair and condition.
Paint the outside of the building at stated intervals and restore and make good external rendering where necessary.
In addition, the tenant is prohibited from carrying out any alterations, which include “maiming or injuring” the walls, without the written consent of the landlord.
After discussions with an art dealer, the tenant decided to remove and replace the section of the wall containing the mural and ship it to New York to be sold.
However, upon becoming aware of the tenant’s actions, the landlord claimed ownership of the mural on the basis that it had been painted onto a wall which belonged to them, and that the tenant had no right to remove it. Further, the landlord claimed that once removed, the mural became a tangible, moveable asset which it owned.
The landlord assigned the claim and ownership of the mural to a charitable art foundation. The claim was defended by the tenant on the basis that they had simply acted in accordance with the repair obligations of the lease, and as such, ownership had passed to them.
The foundation was successful in its application and obtained judgment without the need for a full trial, on the basis that the tenant’s defence had no real prospect of success. Although the High Court acknowledged that there was a valid argument that the mural constituted disrepair, it concluded that rather than removing the wall section, a more reasonable method would have been to paint over the mural or remove it by chemical or abrasive cleaning. The tenant therefore had no reasonable prospect of establishing at trial that their actions were carried out solely in order to comply with the repair obligations.
The tenant was ordered to deliver up the mural to the foundation who wanted to put it on public display in Folkestone.
This case highlights the importance for landlords to be watchful of tenants seeking to cash in on street art which appears on their buildings - while continuing to ensure that tenants comply with repair obligations.
For more information on this case and related issues, please contact Stacey Evans on telephone 0113 3993481 or email her at email@example.com.