18 September 2015

What happens if Banksy paints a mural on your outside wall?

If you own the freehold of the property, and there is no lease to an occupier in place, then you are free to remove and sell it at will (unless Banksy drops his anonymity and claims the copyright in it).

But what if you own the freehold but the whole of the property is let to a commercial tenant until 2022? This might sound like an unlikely hypothetical scenario (or the start of a bad law joke) but it actually happened in Folkestone last year.  Much to the landlord's dismay, the tenant cut out the relevant section of the external wall in order to sell the mural in the USA.

But was it entitled to do so? Funnily enough, the lease did not provide for such an eventuality and landlord and tenant ended up in Court arguing the point.

No, said the Court. The wall (as a part of the structure of the premises) belonged to the landlord and, even if removing the mural could be said to count as "repairing" the wall (ie. by removing the graffiti), the landlord still owned the removed piece of the wall if it was of value. Unsurprisingly, the piece of wall in question was of considerable value so the tenant had to return the Banksy.

If only…

Had the tenant sought legal advice before picking up a chisel, it could have said to the landlord that it proposed to paint over the mural as part of its repairing and decorating obligation unless the landlord agreed to share the value of it with the tenant. The landlord would have had no right to remove the mural or prevent it being painted over whilst the lease was in existence.


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