Peace of mind

The Economist 25 November 2010

Can art collectors protect themselves if a painting they own isn’t really theirs?

When a toothache becomes a headache

WHEN an associate of the Musée d’Art Moderne André-Malraux in Normandy flipped through the catalogue for the auction of impressionist art at Sotheby’s in New York on November 2nd, he made a startling discovery. On sale was “Blanchisseuses souffrant des dents(Laundry women with toothache), a painting by Edgar Degas, which had been stolen in 1973 from a museum where it had been on loan from the Louvre. After being alerted by the French authorities, Sotheby’s dropped the painting from the sale.

An investigation is under way. The owner was putting the painting up for sale in good faith, but he or she is likely to lose it without compensation when it is returned to France. Like most art collectors, the owner had no art-title insurance, which would have provided compensation for the painting’s value, estimated by Sotheby’s at $350,000-450,000.

“Theft accounts for only a quarter of title disputes,” says Judith Pearson, a co-founder of ARIS, a small insurance firm that has been selling title insurance since 2006 and which was taken over by Argo Group, a bigger insurer, earlier this month. Three-quarters of squabbles occur in cases of divorce or inheritance when a spouse or other heirs challenge a seller’s right to sell. A work of art may also carry liens after being used as a collateral for a loan. More rarely, two or more artists may collaborate but then disagree about who has authority to flog their co-production.

Does the risk of title disputes warrant the cost of title insurance? ARIS charges a one-off premium of between 1.75% and 6% of the art’s value. In return the company will cover the legal costs in case of a title dispute and compensate for the agreed value of the art if their client loses the ownership dispute. ARIS has so far written about 1,000 policies and has not yet had a claim.

Paul Provost, director of trusts, estates and appraisals at Christie’s, another fine-art auctioneer, reckons that “title disputes occur very rarely”. When sellers put art up for sale at Christie’s, they sign a warranty that they have clear title, although the auction house cannot guarantee that this is correct. Others think arguments are common. “Title issues are not rare,” says Karen Sanig, head of art law at Mishcon de Reya. There is an industry of claims related to art seized by the Nazis. This year the Andrew Lloyd Webber Art Foundation sold Picasso’s “The Absinthe Drinker” at auction for £34.7m ($51.7m) after several years of legal wrangling with a relative of the German-Jewish family that sold the picture under duress shortly after Hitler came to power.

An alternative to art-title insurance is for collectors to do due diligence about the provenance of a work of art themselves. Yet many do not have the time or the tools to carry out such research, which is a complex undertaking as there is no central register of art ownership. And even sophisticated collectors get it wrong, as the clients of Salander-O’Reilly, a New York art gallery, discovered. It collapsed spectacularly in 2007 after it emerged that it had dealt in stolen art and defrauded its clients in a Madoffian manner for years. Such cases are exceptional, but as the market booms and the value of art increases, more art lovers will look for additional assurances that their art is really theirs.
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