Dreamland Leisure Ltd (Dreamland) was the tenant of a building used as an amusement arcade in Folkestone. In September 2014, Banksy spray-painted a mural on to the wall of the arcade, an attractive spot for graffiti artists. Depicting a lady staring at an empty plinth whilst wearing headphones, Banksy dubbed the mural ‘Art Buff’ (as the artwork on the plinth was buffed out). Given its potential value, Dreamland removed it and shipped it to New York for sale.
The Creative Foundation, outraged at this, took an assignment of the title to Art Buff and of the right to bring a claim for its return. It issued court proceedings against Dreamland and obtained interim orders preventing the sale of the artwork and obliging Dreamland to move it into safe storage. It applied for summary judgment for delivery up of the mural.
Dreamland argued that:
- The repairing covenant in its lease obliged it to remove the mural and it had previously painted over other graffiti; and
- There was an implied term in the lease that the mural became its property.
Whilst Arnold J was narrowly persuaded that Dreamland needed to remove the mural to avoid attracting other graffiti, he did not agree that the method of removal was reasonable for compliance with the repairing covenant. Dreamland had removed the underlying section of wall, rather than painting over the mural or chemically cleaning it.
It was agreed between the parties that something removed from a building under a repairing obligation became a “chattel” and also a term would need to be implied into the lease concerning the ownership of the mural, once removed.
Arnold J concluded that there was an implied term that it became the property of the landlord for four reasons:
- The default position is that every part of the property belongs to the landlord. It is for the tenant to show it is proper to imply a term leading to a different result;
- Compliance with a repairing obligation does not mean that the tenant takes ownership of such a chattel, only that it has permission to remove it and, possibly, dispose of it;
- Whilst is might be implied that waste or chattels of minimal value might transfer to the tenant’s ownership, it does not follow that this is the case where the chattel is of substantial value; and
- Where the value is attributable to the spontaneous actions of a third party (Banksy, in this case), the landlord has the better right to the windfall.
The court ordered Dreamland to deliver up the mural to The Creative Foundation.
The Creative Foundation v Dreamland Leisure Ltd and others [2015] EWHC 2556 (Ch)
Charles Hylton-Potts
