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The art and legal worlds crossed this month when the Creative Foundation and Dreamland Leisure Limited clashed over who owned a mural attributed to the street artist Banksy.

The case, which came to court last month, concerned a tenant with a commercial lease of a building used as an amusement arcade. In 2014, a mural attributed to the street artist Banksy appeared on an external wall of the building. The tenant removed the piece of wall, rectified the damage and arranged for the piece of wall to be sent to New York to be sold. The Creative Foundation, on behalf of the landlord, attempted to stop this happening.

In removing the artwork, the tenant claimed it was complying with its repairing obligations in the lease; they had previously painted over earlier examples of non-valuable graffiti, avoiding disrepair. However, as Banksy’s work has sold for hundreds of thousands of pounds the inevitable argument over ownership of the valuable piece of wall arose.

The tenant argued that it was complying with the repairing covenant. The landlord’s counterargument was that once the artwork was sprayed onto the building, it formed part of the land that belonged to the landlord. The tenant could not remove a section of the wall, even in the name of repair, as this was a prohibited act of alteration. The argument was made that once extracted from the property, the artwork became a chattel belonging to, the landlord.

The case ended up before the High Court which found that the artwork could well be classified as disrepair, and if it were, then the tenant would be obliged to remedy it. If that were the case, the tenant’s obligation would only be to do what was prudent. However, the court’s view was that removing part of the exterior wall went slightly beyond what was sensible.

As to ownership of the artwork, the court was not swayed from the well-established principle that every part of a leased property belongs to the landlord; the tenant has only a temporary interest in that property. The artwork therefore formed part of the fabric of the building and had not transferred to the tenant. The value of the artwork factored into this reasoning.

The tenant was ordered to return the artwork to the landlord, its sale having been halted some months prior. It has since returned to the UK and will be put on public display.

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