“Banksy” Mural Removal not Repair.

The removal by a tenant of a valuable Banksy street art spray-paint mural was said not to be justified on repair grounds and the mural was the landlord’s property or chattel

In Creative Foundation -v- Dreamland Leisure (2015) Dreamland was the amusement arcade tenant of a building in Folkestone.  The demise under the lease included the structure and exterior of the building.  The lease contained typical covenants on the part of the tenant to repair, decorate every fourth year and not make alterations without landlord’s consent.

In late-2014, a Banksy mural was spray-painted on the side of the building.  Press reports suggested that the mural was worth £300,000 or even more.  Soon after, Dreamland had the section of wall containing the mural removed from the building and shipped to the USA and the building made good.  The landlord’s assignee, the Creative Foundation, sought the return of the mural on the basis that the severed bricks on which the mural was painted had, on their removal, become chattels once more and belonged to the landlord.

Dreamland argued that it had been entitled to remove the mural in order to comply with its repairing obligation and that, on removal, the mural had become its property by virtue of an implied term of the lease.

The court disagreed with Dreamland.  It said that an obligation to repair was only engaged if a building was out of repair, and it questioned whether there was disrepair and whether Dreamland’s repair covenant had in fact been engaged.  Further, the court said, even if the covenant had been engaged, Dreamland was only required to do such remedial work as was prudent and which a reasonable person would adopt.  The removal of the mural was said to have been an unnecessarily invasive method of repair.

As regards the ownership of the mural, the court said that it was to be implied into the lease that, where an item was removed from the demised premises pursuant to the repair clause and became a chattel and which had substantial value, the chattel became the property of the landlord.  It therefore ordered Dreamland to deliver up the mural to the Foundation.