The One About the Banksy

29 Feb 2016

In the case of The Creative Foundation v Dreamland Leisure Limited [2015] EWHC 2556 (Ch) the High Court was tasked with deciding whether a tenant was permitted to remove a piece of street art from the external wall of the property it rented under a 20 year lease. This particular piece of graffiti was by the illusive, world-famous, graffiti artist Banksy and appeared on the external wall of the property in September 2014.

In November 2014 the tenant, Dreamland Leisure Limited, arranged for the section of the wall with the mural on it to be removed and the wall was then made good. The mural was to be sold and the proceeds donated to charity. The tenant argued this was in line with the covenant in their lease to keep the property in good and substantial repair and condition and that it was an implied term that they owned the bricks, which became chattels once removed from the wall.  The claimants, however, argued that the wall formed part of the landlord’s freehold land and once the bricks were removed they were chattels belonging to the landlord.

The High Court found for the Landlord, ruling that, although the tenant’s repairing covenant was engaged by the graffiti on the wall, the method of repair used was not reasonable. Additionally, the High Court found that the default position is that the property belongs to the landlord and, as there was substantial value in the chattels removed, there could not be an implied term that the tenant owned the items removed.

From a practical perspective therefore, while landlords are unlikely to take issue with a tenant removing items from the property in carrying out repairs if they have no significant value, chattels which have material value belong to the landlord and not the tenant. Tenants should bear this in mind when carrying out repairs which result in waste of any significant value as, while there may be an implied term that the tenant becomes the owner of chattels with minimal value, this is unlikely to be the case if the value of the item removed is substantial.