The writing’s on the wall

When does graffiti become street art? Local authorities spend millions of pounds each year cleaning up graffiti, and London Underground has a never ending job scrubbing it from their trains and stations. Technically, graffiti is a criminal damage offence – but is it all bad? The rise in street art over the last decade has been phenomenal, and, despite several hoax stories to the contrary, we don’t believe that Banksy has been arrested yet….

Who owns street art?

Is it the street artist? The building owner? Or, if the property is let out, is it the tenant?

It’s this question that the High Court had to address when a Banksy mural, “Art Buff”, appeared on the back of an amusement arcade in Folkestone recently as part of a public art event organised by the Creative Foundation (an arts charity promoting regeneration in Folkestone).

Unsurprisingly, Art Buff was an instant hit – graffiti artists came from far and wide, desperate to have their work next to the masterpiece. But after about a month, Art Buff mysteriously disappeared from the wall. Not the usual sort of thing to just go missing overnight – so what happened?

In short, the tenants of the property (Dreamland Leisure Ltd) had decided that they’d cut the mural out to clean up the wall. Oh, and while they were at it, they decided to send it over to the US to see if they could get any money for it. Perhaps they’d heard that previous Banksy works had sold for a bob or two?

And how did they justify this?

Well, through their repairing obligation under their lease. Yes, their repairing obligation. No, we’re not making this up. Promise.

We all know that tenants have certain obligations under a lease. Keeping a rented property clean and carrying out minor maintenance repairs is certainly one of them. And in this case, the repairing obligation went further and included repairs to the structure and exterior of the property. But just how far does this go?

Dreamland argued that they were obliged to keep the building in good repair, so had no option but to chisel out the mural and replaster and paint the wall. Whatever “waste” came off the wall, they claimed, surely belonged to them? In the past, they’d been asked to decorate over ordinary graffiti – so how was this any different?

Just a few hundred thousand pounds or so different, that’s all.

Street art or graffiti?

The High Court judge agreed that something needed to be done about the mural to avoid attracting more graffiti, and so Dreamland were right to think about removing it under their repairing obligation. But it was the way in which they went about it that the judge didn’t like. Surely it would have been easier and cheaper to simply paint over it as they’d done in the past? Yes, of course – if it weren’t for what was actually on the wall this time around.

And once they got the mural off the wall, did it belong to them? According to the High Court, no – it was part of the building and so belonged to the landlord. So it’s no surprise that Art Buff is set to be returned to Folkestone and will soon be on public display again.

Mural of the story (see what we did there?)

Part of the problem here was that there wasn’t much case law for the High Court judge to rely on. After all, how often does a Banksy mural appear on your wall overnight? But the result raises some points of general importance in landlord and tenant law, which we here at Simplify the Law are rather interested in:

  • Tenants should always comply with their repairing obligations – but it’s important to remember that the building and any fabric of the building belong to the landlord, and so can’t be sold off by a tenant;
  • The Banksy mural had a clear intrinsic value to whoever owned it, and the fact Dreamland was trying to make a profit from its obligations under the lease worked against them.

And if you’d like to find out more about when a landlord can forfeit a lease, look no further…

More on forfeiture

Well that’s enough from us: we’re just off to hire a very long ladder. We noticed that the ceiling in the Sistine Chapel looks like it needs a bit of filler…

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