The High Court has held that a Banksy mural on the wall of a building belonged to the landlord, not the tenant.
The mural, called “Art Buff”, appeared on the wall of an amusement arcade in Folkestone in September 2014 during an art event organised by The Creative Foundation.
Dreamland rented the property, including the structure and interior, under a 20 year lease. It was a term of the lease that Dreamland would keep the property in good repair and condition.
The mural soon became popular with local residents and attracted national press attention, but about a month after it first appeared Dreamland removed the section of wall on which the mural was painted and arranged for it to be shipped to New York to be sold.
The Creative Foundation, to whom the landlord of the building had assigned its right to make a claim against Dreamland, argued that the building formed part of the land belonging to the landlord and the mural had become part of the land when it was sprayed onto the wall. Dreamland had no right to remove the section of the wall and in doing so was in breach of the terms of the lease.
Dreamland argued that it removed the mural in compliance with its obligations under the lease to keep the building in good repair. Once removed it argued the mural became the property of Dreamland rather than the landlord by virtue of an implied term in the lease.
There were two main issues for the court to consider:
- Whether Dreamland was obliged to remove the mural to comply with its obligations under the lease, and whether the way in which it did this was reasonable.
- Whether, once removed, the mural belonged to Dreamland or the landlord.
On the first issue, the Mr Justice Arnold found that Dreamland had “no reasonable prospect of establishing that it was entitled, let alone obliged” to remove the mural in compliance with the lease. Although it was arguable that the mural painted onto the wall constituted disrepair, the judge said that, unlike painting over or removing the mural by chemical or abrasive cleaning, removing the wall altogether “involved interference with the fabric of the building”.
On the second issue, the judge said the default position is that every part of the property belongs to the landlord, and this would not change just because a tenant removed an item to comply with its repair obligation. In this case it was significant that the mural removed by Dreamland was of substantial value. The judge said that where the value of a removed item is attributable to the spontaneous actions of a third party, the landlord has the better right to that windfall than the tenant. The mural belonged to the landlord, not Dreamland.
The Creative Foundation is currently making arrangements to have the mural returned to Folkestone where it will be put on public display.
This result emphasises that artworks on external walls will normally belong to the landlord of the building. A tenant in Dreamland’s position who wants to remove a mural might be better advised to negotiate with its landlord given that it is unlikely to be entitled to remove the work without consent.