Graffiti has long been a contentious issue, posing questions of public interest such as, at what point does art and self-expression become vandalism? Nevertheless, from a commercial point of view, a prevalent consideration may be who has the right to assert ownership of the artwork?

This issue was discussed in the case of The Creative Foundation v Dreamland Leisure Limited in the context of a building situated in Folkestone that was let to an occupational tenant. In September 2014, the tenant of the building, used as an amusement arcade, found the external wall spray-painted with a mural attributed to the street artist Banksy. The tenant, who had a lease of the whole building including its structure, removed the section of wall onto which the artwork was sprayed, made good the damage and subsequently shipped the artwork to New York to be sold.

There is an established principle that in the absence of a contrary intention, every part of a leased property belongs to the landlord and the tenant’s interest is limited and defined by the terms of the lease. However, in this case, the tenant alleged that it was acting in accordance with the repairing obligations in its lease which obliged them to keep the premises in good and substantial repair and condition and that once removed, the artwork became theirs (pursuant to an implied term in the lease).

The landlord pursued a claim on the principle that the landlord had legal ownership of all parts of the property, including parts of it that were removed.

The High Court agreed with the landlord. Though acknowledging that the artwork could constitute disrepair, it pointed to far less invasive methods of maintenance often used for worthless graffiti, such as repainting or chemical cleaning. These methods were considered to come within the definition of ‘repair’, to be interpreted as genuine repair works, rather than as alterations to the property.

The Court accepted the argument put forward by the landlord that a building constitutes an extension of the land, and therefore parts of the building that are removed become chattels that remain in the ownership of the landlord. The Court ordered for the artwork to be returned to the landlord for the benefit of the Foundation for the town of Folkestone.

In this case it was the value of the chattel that created the interest. Ordinarily it would be implied that a tenant has the right to dispose of debris, but where the part removed is of value, that part becomes a chattel that belongs to the landlord.

Please note that this information is provided for general knowledge only and therefore specific advice should be sought for individual cases.

For further information, please contact Paul Jagger