Banksy, the famous but pseudonymous street artist, has been in the news again this week with his mural criticizing the apparent use of tear gas on migrants in Calais, France.
An earlier Banksy mural on the walls of an amusement arcade in Folkestone, England, gave rise to interesting questions concerning tenant’s repairing obligations, in particular the extent to which tenants are entitled to dispose, as they wish, of parts of a building removed while complying with a repair obligation. The dispute was eventually resolved in the High Court last autumn. The Creative Foundation v Dreamland Leisure Limited  EWHC 2556(Ch).
In this case, the tenant, on discovering the Banksy mural (valued at approximately £500,000), cut out the spray-painted wall of the demised premises and, eventually, sent it for sale to an art gallery in New York. It argued that, as it was responsible for repairing the premises and as it was entitled to choose the most appropriate means of doing so, it was entitled to remove the wall and to replace it with identical brickwork. The tenant further argued that all parts of the premises removed in the course of carrying out repairs became chattels and were the tenant’s to keep. Not surprisingly, the landlord disagreed, claiming that the mural belonged to the premises. The court agreed with the landlord.
The court recognized that a tenant, in complying with a repairing obligation, is required to undertake such remedial work as a prudent sensible person would adopt. It also noted that if there is more than one objectively reasonable means of carrying out such works, it is for the tenant, as covenanting party, to select which reasonable method it wishes to employ. However, in this case, the judge held that the removal of the wall did not amount to an objectively reasonable method; it observed that far less invasive methods were available. Accordingly, the works undertaken by the tenant were in breach of its repairing obligations in the lease.
Furthermore, the court held that where a tenant carries out works to premises, the starting position is that every part of the property belongs to the landlord. The court confirmed that while items removed from the premises may become chattels, they do not cease to be owned by the landlord. If the tenant wishes to imply into the lease a provision that it should be entitled to keep parts removed, the onus is on it to prove this. It may be right, in certain circumstances, to imply a term enabling the tenant to dispose, as it sees fit, of such items during the course of genuine repair works. However, the court saw no reason, in this case, to imply a term that the tenant should be entitled to dispose of and benefit from part of the premises that had significant value. Accordingly, the tenant was ordered to retrieve the mural from New York and return it to the landlord.
The moral of the story appears to be if you think Banksy’s going to create a mural on your wall, make sure you own it first!