Property disputes don’t normally start with stone statues of seated ladies or a woman in headphones looking at an empty plinth, and end up in court.
But two recent rulings over a Henry Moore sculpture and a mural believed to be the work of street artist Banksy have become the focus of property disputes, and more importantly whether works of art should be covered in lease terms.
In this week, Emma Humphreys, a partner at Charles Russell Speechlys, offers her thoughts on the two cases and asks whether the time has come for art to be specifically catered for within the terms of leases.
She explains how one issue in disputes over ownership can be whether a work of art is a chattel or a fixture, as was the central argument in a dispute between two London boroughs over a Henry Moore sculpture originally known as ‘Draped Seated Woman’ but affectionately named ‘Old Flo’ by locals during its decades in place in an area of open space between residential tower blocks.
That question was key to determining who owned the valuable sculpture, and substantial amounts of money can turn on who can lay claim to ownership.
She offers as an example the likely Banksy mural at the centre of another recent dispute, which is estimated to be worth as much as £470,000.
She says: “There was a time when artwork affixed or painted onto a building might simply have formed part of a landlord’s dilapidations claim, on the basis that the tenant should have removed the item before vacating the property. These days, it seems more likely that a tenant might try to reduce its landlord’s dilapidations claim to reflect the value of any such artistic item – particularly if it happens to be a Banksy mural.”
Humphreys says that the dispute arose because of the “normal silence within the lease about who should own any parts of the building that were removed” and that clear provision in the lease would have avoided the need for proceedings.
Humphreys says that landlords who would prefer to avoid such uncertainty and to protect their ability to take advantage of any “unexpected art windfall” may try to include appropriate protections within their leases to clarify the ownership of relevant artwork and/or ensure that its value is preserved. However, she warns, introducing new lease provisions may create its own problems and – such is the usual rarity of this kind of dispute – it might be better to let the courts deal with it when an issue arises.
For more, see The art of negotiation in the Practice & Law section of this week’s Estates Gazette. Subscribers can read the full article here: /legal/ the-art-of-negotiation
To read the ruling on the Banksy artwork click here and click here to read the full details on the Henry Moore ruling.
