When considering legal issues relating to art those concerning property would not be high on the list. You might think of disputes over the authenticity or ownership of a piece of art, or an auctioneer’s liability, but you would be unlikely to consider the law of forfeiture, trespass or nuisance which are commonplace in the field of property litigation. However, some recent cases have highlighted an overlap between these two seemingly separate areas of law.
The Creative Foundation v Dreamland Leisure Limited and others
In 2015 there was a dispute between a landlord and tenant over a work by the street artist Banksy. The work in question – “Art Buff” – was a mural painted by Banksy on the wall of a building in Folkestone, Kent. Dreamland Leisure Limited were the tenant of the building and the Creative Foundation took an assignment of any rights of the landlord over Art Buff. Dreamland removed Art Buff from the building – which meant removing the wall on which the mural was painted – and shipped it to New York to be sold.
The Creative Foundation argued that Art Buff belonged to them and that the wall formed part of the fabric of the building belonging to the landlord and so Dreamland were not entitled to remove it. Dreamland tried to argue that they were simply acting under their obligations in the lease to keep the building in good repair. The High Court in rejecting this argument decided that they had interfered with the fabric of the building, an action beyond any obligation in the lease, and that the default position is that every part of the building belongs to the landlord, even if removed from the building. The Creative Foundation intend to have Art Buff back on display in due course. The lead partner in this case was Tim Maxwell, who recently joined our Art Group at Charles Russell Speechlys
Timothy Taylor Limited v Mayfair Corporation and Another
In 2016 a Mayfair art gallery situated on the ground floor and basement of premises suffered significant disruption when the landlord carried out works to the building. The works were substantial and the landlord constructed scaffolding in such a way that it “enwrapped” the building, giving the impression that the art gallery had disappeared and was part of a building site.
The gallery experienced high levels of noise which caused significant disturbance to the day-to-day running of the business. The gallery acknowledged that the landlord was entitled to carry out its works but took issue with the way in which the works were being carried out which paid no regard to its rights under its lease of the premises. The court decided that the landlord was in breach of its covenant for quiet enjoyment and awarded the tenant damages at 20% of the rent payable for the whole of the period whilst the scaffolding was in place. In reaching his decision the judge took into consideration the substantial rent paid by the tenant, the fact that the scaffolding was designed and erected with little or no regard to the tenant’s interests and that the landlord had made no real attempt to communicate with the tenant over the length of the works. Consequently the landlord had not complied with its obligation to take all reasonable steps to minimise the disturbance to the tenant during the carrying out of the works.
Fearn v Board of Trustees of the Tate Gallery
Earlier this year we saw the creation of an important new privacy law as a result of a judgment in the High Court. This wasn’t a case involving super-injunctions sought by celebrities, it was an old fashioned neighbour dispute but with a difference…
The case related to the viewing platform on the recently constructed extension to the Tate Modern and was brought by a group of owners of apartments in the neighbouring Neo Bankside development. The apartment owners claimed that the use of the viewing platform by the public, which overlooked their apartments, breached their rights to ‘private and family life’ under Article 8 of the European Convention on Human Rights and caused a legal nuisance.
Nuisance cases historically relate to noise emanating from a property or physical activity on land that prevents the enjoyment of neighbouring property. It is important to understand that whilst the law does protect a right to receive daylight to windows in a building, it didn’t until now provide any right to a particular view from those windows nor did it prevent overlooking of the windows by neighbouring buildings. Some of these issues will be considered in the planning context but this case was about private legal rights between the owners of neighbouring properties.
In a lengthy seventy page judgment Mr Justice Mann broke new legal ground confirming that the law of nuisance will protect privacy rights from overlooking in an appropriate case. However, having made that unexpected leap, he then went on to find that on the facts of this case no actionable nuisance was established. Those reading the Judgment might find this surprising given the estimates of around 600,000 visitors to the viewing platform each year. He accepted evidence that binoculars and cameras were used to see inside the Claimants’ apartments. Against that he considered the inner city urban environment and what an occupant of an apartment in this setting might reasonably expect. Much focus was placed on the design of the apartments and the extensive use of glass. In summing up the Judge said that the Claimants had ‘… created or submitted themselves to a sensitivity to privacy which is greater than would be the case of a less-glassed design’. He also ran through the steps which the owners could take to reduce the impact which included solar blinds and net curtains.
At face value the decision provides significant encouragement to property owners who feel their privacy is being intruded as a result overlooking by their neighbours. However, given that this new law wasn’t enforced, even on the striking facts of this case, it is difficult to conceive of an appropriate case for its use.
It isn’t surprising that the apartment owners are appealing the decision and it will be very interesting to see what the Court of Appeal makes of it all. In the meantime, the new privacy law remains in place but is unlikely to be enforced prior to the determination of the appeal, if it is ever enforced at all.