Art & Law. Bona fide acquisition and ownership of the artwork
ARTinvestment.RU   12 марта 2020

Briefly talk about what nuances should be considered and any disputes can be avoided when transferring a collection of art objects by inheritance

collectables — occupation of the individual. Often purchased objects of art are transferred from the investment asset in a purely emotional, to the succession-planning which the collector might not fit as well as to inherit a business or estate. However, most issues can be resolved during the life of the testator to provide for his heirs (1) smooth and purely aesthetic enjoyment, including the lack of current or future costly litigation, including complicated by a foreign element (when one of the parties is a natural or legal person — resident of the Russian Federation. — AI.), and (2) the possibility of disposal of the art collection (for the purposes of this article we will use the word "collection" that includes both the individual art objects and the collection as a whole. — Yu) as in its sole discretion, and in accordance with the wishes of the testator. The owner has the right at its discretion to make in respect of property belonging to it any actions not contradicting the law and other legal acts and not violating the rights and legally protected interests of other persons (article 209 of the civil code).

As the collector can prove ownership of the collection? Consider the provisions of the Russian legislation in relation to individuals. the Foundation of the emergence of property rights regulated by the civil code, we list the main, namely:

• direct creation of things (for art-рынку — of the paintings included in the art collection);
• the ownership of the property which has the proprietor, can be acquired other person on the basis of contract-продажи, exchange, donation or other transaction about alienation of this property;
• inheritance by will or the law including inheritance under genetic Fund established by the testator;
• the acquisition of property by acquisitive prescription (a person who is not the owner of the property, but in good faith, openly and continuously owning them as their own property within five years, acquires the right of ownership of the property, article 234 of the civil code).

Chain of changing owners or persons in whose hands is collection at a certain moment can often be quite long, so it is desirable that the collector had a complete picture of the history of ownership of artwork (provenance) and had the corresponding documents confirming the legal title (i.e., the recognition of ownership), authenticity and the status of the collection. In accordance with the dominant art market in the principle of Caveat emptor ("Let the buyer beware"), legal and financial risks associated with the acquisition, the buyer is responsible, which imposes on him the burden of having to complete due diligence and verify all aspects of the potential transaction. Therefore, a future potential buyer of your collection will be in the same situation, and you should be possible to provide information and documents to the transaction took place.

If the basethe emergence of property rights agreement or the acquisition of title arises in the course of inheritance, among other essential conditions, which we shall later speak, it is important to pay attention to the transfer of exclusive rights of the author: go to the new owner in full, together with material objects collection?

On the issues of bona fide possession¹ more details will be discussed in the article deals with works of art. For the purposes of this article it should be noted that Russian civil law is the good faith of the parties involved and the reasonableness of their actions (article 10 of the civil code). Suggests, but does not guarantees. However, the art market is often considered by the buyer as overly secret and opaque, where no documentation of the transaction — common norm. This could be used by unscrupulous players (criminals, fences). In civil proceedings the requirements of the legal owner to bona fide purchaser on the return in the latest collection are not uncommon. The Russian legislation regarding the status of a bona fide purchaser similar to a number of European legislations that to some extent protect the rights of bona fide purchaser depending on the circumstances that the purchaser should know, and guess in the transaction.

currently, an increasing number of legal disputes for the recovery of works of art forcibly taken from private owners during the Second world war (the so-called nazi-looted art)², and the return requirements of the States³ trophy art. The problem is that the collector can long time to keep the house collection, which has never been exhibited, but if he or his heirs decide to sell it, it may be that it is the subject of the claims of the true owners who are searching for her around the world. To confirm your legal ownership in the absence of documents of title it is recommended to store receipts, photos, catalogues raisonné, exhibition catalogues, historical home inventory @all mdas that will help confirm your lawful possession of open.

Transfer of collections can be made during the life of the collector: (1) for example, the collection may be donated to one or more heirs during the life of the testator, but if the gift is documented, subsequently it will certainly cause a dispute@the semicolon (2) the collection may be donated to the Museum for display, in order to transfer it from the private domain into the public domain, — and it is also necessary to properly arrange, to exclude the dispute, whether such actions are a gift to the Museum or just transfer to temporary exhibition.

Registration steps

the Transfer of ownership of the collection, as well as the transfer of the collection itself, does not require any-либо mandatory registration actions. Accordingly, at the state level there are no-либо instruments or institutions which would guarantee the right of ownership of a specific person for a specific collection. Otherwords, about their own protection should first to think the buyer — and even to the time of the transaction: double-checking the origin of the work and making the transfer of documents. Transactions of owners of Museum objects that are included in the non-state part of the Museum Fund, we will discuss in a separate article.

Conclusion

Deals with art objects require the evaluation of legal risks, including those associated with proof of ownership, which imposes on the buyer the burden of examination as the history of ownership of artwork (provenance) and the availability of documents confirming the legal title.

the Lack of any-либо appropriate documentary evidence of your right could be the consequence of existent until a certain time on the art-рынке "cultural handshake" — deals without contract, negligence in the evaluation of the consequences of non-possession and otherwise. The confidentiality of most transactions, it reduces the amount of information which can be received by the buyer. This leaves legal uncertainty and, together with the absence of a confirmed provenance may adversely affect the subsequent sale of works of art, including heirs.

Yulianna Vertinskaya, Legal&Compliance, especially for the AI

² (1) In February 2020, at the Metropolitan-музее (new-Йорк), an investigation was initiated in relation to paintings of the XVII century, stored in the Museum's collection. She probably belonged to Jewish art dealer Siegfried Aram, and he left his job in Germany when he fled the country in 1933. According to the report "new-Йорк times", the Museum is launching an investigation into the history of the work (nytimes.com); (2) Louvre Museum hired art historian and specialist on the art of the occupation of France during world war II Emanuel Polak to reduce and remove any-либо potential claims by heirs. On this, see AI: artinvestment.ru.

³ Poland asked Russia to return the paintings, removed during the Second world war (golos-ameriki.ru).