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Creative Tuesday 17th June 2014

WHEN YOUR WORKSPACE BECOMES A WORK OF ART

WHEN YOUR WORKSPACE BECOMES A WORK OF ART

The Stealing Banksy project caused outrage last year when a series of the street artist’s works were chainsawed off buildings with the stated intention of them being sold at auction. 

Local communities protested and the debate as to who owned street art raged. With the valuation of Banksy originals running into the millions this was clearly a debate of both financial as well as of artistic importance. 

An auction was scheduled for late April and hundreds of people turned up to a pre-sale exhibition. Banksy broke cover to condemn the proposed sale but, at the last moment, the organisation behind the project – the Sincura Arts Club – revealed that the reality of what they were doing was far from the public perception.

Sincura Director, Tony Baxter, explains: “Stealing Banksy? was never created as a sale of street art, and in fact many of the pieces displayed were not actually available for sale. Furthermore, those artworks made available had strict caveats placed on them; that upon purchase they would be put back on public display and that the proceeds from any sale would benefit local charities. 

“As a company we were approached at the start of this project to see whether the world’s first Street Art Museum could be created in the heart of London. We believe strongly that street art is an important part of the modern day art movement and should be recognised as such. Established museums do not have budgets allocated for the preservation of such art and school curricula shun the subject.

“We were tasked to prove that there is a demand for this, for the artwork to remain on view, for the conservation of the art, and as a public debate. This is why we called the show Stealing Banksy? with the goals to explore the social, legal and moral side of the sale of street art. Our goal was not to answer questions but to ask them of the general public. 

“The show saw a huge amount of public opinion, both good and bad, and proved that as a nation we do feel attached to this form of artwork. Our tours during the show were aimed at explaining the work we do and to engage the public for their opinions on the street art movement. And the positive feedback was tremendous.”

Sincura are now in negotiations with The Old London Underground Company to convert a disused London underground station into the first ever Street Art Museum in the world.

And so the debate about this emergent form of art was successfully raised in the public consciousness. But what happens if you do find a valuable piece of art on your building? 

In April, Banksy painted a new piece, Mobile Lovers, on a door in Clement Street, Bristol, but it was swiftly removed by the leader of a nearby boys’ club and used to raise money for the group. The piece was then taken back by Bristol City Council – who argued that the work was on its land – and sent to a museum for safekeeping. But then Banksy contacted Broad Plain Boys’ Club to say that he was happy for the club to keep the artwork. The estimate of the work’s value is around £2m.

So what happens if Banksy picks the end wall of your office building for his next masterpiece? Can the tenant claim ownership or is it always going to be the landlord’s? Or does it belong to neither? If a tenant has an FRI (fully repairing and insuring) lease, could they remove the work as part of routine ‘repairs’, keep the art and make good the wall? Time to talk to a lawyer... 

WHOSE WALL IS IT ANYWAY?

Whilst the international art market is not her normal preserve, we asked expert property lawyer, Louise Cartwright of Irwin Mitchell, to give her – strictly without prejudice – thoughts on the subject…

“When thinking about leases, whether the tenant will have a right to remove and sell valuable street art will depend on exactly how the lease is worded. As we lawyers always say, the devil is in the detail! However, a few questions may help establish whether the tenant has any rights to remove and sell a piece of art.

“Firstly, who ‘owns’ the wall for the purposes of the lease and therefore who is responsible for it? The wall may be demised to the tenant and therefore it’s their responsibility. However, in leases of part of a building, particularly offices, this is often not the case. 

“If the wall is demised to the tenant, it will doubtless be responsible for keeping the premises in good repair and condition and there is probably a specific obligation to redecorate at regular intervals. It is therefore conceivable that the landlord could require the tenant to paint over or remove a piece of art if it chooses to, however ludicrous that might seem if the art is valuable. 

“We should also consider the question of whether the tenant could physically remove the part of the wall containing the painting. This will depend on how tightly the landlord’s control over alterations and works to the building has been drafted. 

“It is common for leases to prevent structural alterations or works to ‘cut or injure’ the premises. On the basis that the art could simply be removed by painting over it, it would be difficult for a tenant to argue the wall really had to be removed as a necessary consequence of its repairing obligation. The landlord may argue that its consent is required for those works and it would probably be reasonable for it to refuse consent to works that are not connected with the alteration, use or maintenance of the building.

“Taking a different approach, let’s say instead that the wall is the landlord’s responsibility. Some landlords may not appreciate the artistic merit of the gifts left on their building by up and coming street artists. There must after all be a fine line between art and graffiti! If it were graffiti, it should be covered by the landlord’s insurance policy as ‘malicious damage’ and so the landlord could make a claim for the costs of removing it. Alternatively, the landlord may repaint the wall and look to recover those costs from the tenants through the service charge. That would seem a shame but would certainly be allowable under most leases.

“Whether a tenant is entitled to remove the wall and sell the art is ultimately a case of interpreting the lease, but it would be safe to assume a landlord would seek to prevent it and try every trick in the book, whether to protect the building or to negotiate a slice of the profit!”

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