Whose Work Of Art?

The Creative Foundation v Dreamland Leisure Limited and others [2015] EWHC 2556 (Ch) is an interesting case, relating to the ownership of a Banksy art work spray painted on a building. Although the circumstances of the case are unique, it provides helpful guidance on the matters to consider if there are any valuable chattels at a building.

What happened?

In September 2014 a work of street art was spray painted on the side of a building in Folkestone. The work known as "Art Buff" was attributed to Banksy and became popular locally as well as attracting attention from the press. One valuation suggested the art work was worth £300,000; subsequently a higher valuation of up to £470,000 was also suggested. The art work was created without the consent of the landlord or the tenant of the building.

A month or so after the art work appeared, the tenant of the building, Dreamland Leisure, removed the section of the wall on which the art work had been spray painted and made good the damage to the building. The tenant then shipped the art work to New York to be sold. This was all done without the approval of the landlord. No buyer was found for the art work.

The Creative Foundation is a charity which contributes to the regeneration of Folkestone by promoting creativity and the arts. The Foundation took an assignment of the landlord's title to the art work and then brought legal action for its return. In the meantime they obtained an injunction preventing the tenant from selling or dealing with the art work. The Foundation said that if it won its claim, it would put the art work back on public display in Folkestone.

The tenant's lease of the building

The tenant's lease included the structure and exterior of the building on which the art work was painted. It contained a normal repairing covenant under which the tenant was to keep the premises, its fixtures and additions in good and substantial repair and condition and to paint the exterior of the building every 4 years. The tenant was also required to obtained the landlord's consent to any works it wished to carry out to the building and the tenant was not permitted to maim or injure the walls of the building.

The arguments put to the court by the tenant and the Foundation

The tenant claimed that it was under an obligation, or at least entitled, to remove the art work from the building in order to comply with the tenant's covenants in the lease and once removed from the building, the art work became...