Thinking about Title: who “owns” Banksy’s The Drinker?

The common law established a multi-titular property system that recognises that multiple, independent titles may exist simultaneously in a given object. Importantly, the term ‘title’ refers to the greatest kind of interest that the law recognises. In English law, a person acquires such a title simply by taking possession. So, if I leave my watch in the changing room at the local swimming pool and you find and appropriate it, case law shows that you will acquire a ‘general property interest’ (also called an ‘absolute interest’ or ‘ownership interest’). Hence, you and I will each have the very same kind of interest in the watch. But since I acquired my title before you acquired yours, my title will have priority; it is, as property lawyers often say, ‘good as against you’ and I can sue you in tort for wrongfully interfering with the watch. Your title does not bind me, but it is good against everyone who does not have a better title than you.

Accordingly, the central issue is not whether Link was ‘the owner’ of the sculpture, but whether he has a title that is better than the title of the person (‘the seller’) who had wanted to sell it at Sotheby’s. To determine whether he does, we need to answer three questions: (1) Did Link acquire a title to The Drinker? (2) If so, does Link still have his title or has it been extinguished? (3) If Link still has a title, is it good as against the seller?

(1) Did Link acquire a title?

According to reports in the British press, The Drinker was left in a small square in London’s West End, presumably by Banksy or his agents. The plan, apparently, was to move it from venue to venue, uninvited. But the plan never materialised, because the sculpture was seized, or ‘kidnapped’, by Link, who demanded a ransom of £5000 for its return. After Banksy offered £2 towards a can of petrol to set it on fire, Link put The Drinker in his garden, where it remained for three years.

Clearly, Link obtained possession of the sculpture: he had exclusive physical control of it and an intention to exercise such control for his own benefit. Therefore, he acquired a title—a general property interest—in the chattel, which was good as against everyone, except those with a better title.

(2) Has Link’s title been extinguished?

In 2007, The Drinker was taken from Link’s garden, without his consent. It might be thought that, since Link had merely a ‘possessory title’, his title came to an end when he was dispossessed. But the authorities support the proposition that Link’s title was not co-extensive with his possession. In other words, as argued here, his interest survived the loss of possession.

It is possible that Link’s title has been extinguished by lapse of time. According to s 2(1) of the Limitation Act 1980 ‘[a]n action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.’ If the artwork was taken by someone who did not have a better title than Link, then the dispossession probably amounted to the tort of conversion and a cause of action accrued to Link in 2007. If so, section 3(2) of the Act provides that, if the limitation period has expired, and the claimant has not recovered possession during that period, the claimant’s title will be ‘extinguished’. On that basis, Link’s title was extinguished in 2013. There is, however, a caveat: s 4(1), (2) of the Act apply special limitation rules to cases involving ‘theft’, and Link claims that The Drinker was stolen from him. In such a case, the victim’s cause of action in respect of the theft, or in respect of any conversion related to the theft, is not subject to the s 2 time limit, and so his title would not have been extinguished in 2013. However, time would have started to run against Link if the thief had sold The Drinker to a good faith purchaser: s 4(2). According to Sotheby’s, the seller acquired the work from a dealer in 2014. We do not know how the dealer acquired the sculpture, but if the dealer purchased it in good faith before November 2013, the time limit has now expired, and Link’s title has been extinguished.

(3) If Link still has a title, does it have priority as against the seller?

It is not possible to provide a definitive answer to this question, as we do not know who the seller is or the circumstances in which title was acquired. One possibility is that the chattel was re-captured by Banksy in 2007 and the seller is Banksy’s successor in title. If so, the seller has a better title than Link, unless (a) Banksy was divested of his title in 2004 when he left the sculpture in the public square or (b) Banksy’s title was extinguished six years later, in 2010, under the Limitation Act.

Link has claimed that Banksy ‘abandoned’ the sculpture in 2004. However, it is necessary to distinguish a physical abandonment, such as leaving one’s thing in a public place, from an abandonment that involves a loss of title. The law on the abandonment of goods is not as settled and clear as it should be, but it seems from the case law that it is possible to divest oneself of title through abandonment provided the person in whom the title is vested intends to abandon title. Banksy obviously intended to leave The Drinker in a public place, but that does not mean he intended to give up his title. If  Banksy intended to move the sculpture across London, from venue to venue, this would indicate that he did not intend to abandon his title, and that Banksy’s title was not extinguished in 2004.

Was Banksy’s title extinguished in 2010 as a result of lapse of time? Not if Link’s ‘kidnapping’ in 2004 amounted to theft, as time would not have started to run under the Limitation Act. Even if time had started to run against Banksy, his title would not have been extinguished if he re-took the sculpture in 2007, because title is extinguished only if possession is not re-acquired during the limitation period.

It is, therefore, certainly possible that Banksy’s title was not extinguished through abandonment in 2004 or by lapse of time in 2010. If Banksy’s title was transferred to the dealer and, later, from the dealer to the seller, then the seller has a title that is better than the title (if any) vested in Link. On the other hand, if the seller is not Banksy’s successor in title, and if the title that Link acquired in 2004 has not been extinguished by lapse of time, Link has a better title than the seller.

Link could, in that case, sue the seller for converting his goods and, subject to the jus tertii point (discussed below), he could recover damages assessed by reference to the value of the chattel. Alternatively, Link could seek an order for delivery of the artwork and damages for consequential loss. Could Link also sue Sotheby’s? Sotheby’s would certainly have been liable in conversion if it had sold The Drinker at auction (but it was withdrawn). Sotheby’s may be liable to Link for tortiously interfering with the piece, though it is difficult to be sure without knowing more about the extent to which Sotheby’s has interacted with it.  If Link brings proceedings against the seller and Sotheby’s, they could, if Banksy still has his title, invoke s 8(1) of the Torts (Interference with Goods) Act 1977. This would allow them to deny Link’s claim by showing ‘that a third party has a better right than [Link]’. They would have to identify that third party and, possibly, join him or her to the action.

There is much that we do not know about what has happened to The Drinker over the last 11 years. One thing that we do know, however, is that Link acquired a general property interest in it when he took possession of it. This ‘kidnapping’ may have been wrongful vis-à-vis Banksy, but it nonetheless gave him a property right that was good as against all those who do not have a better title. The story of Banksy’s The Drinker provides, therefore, a neat illustration of one of the common law’s most distinctive creations: relativity of title; as well as a timely lesson in why it is a mistake to think that title disputes are to be resolved by simply identifying ‘the owner’.