Commercial Investment Real Estate July/August 2019 | Page 20

LEGAL
BRIEFS
Paint the Town –
But Get a Waiver First
One case highlights the many considerations real estate professionals
need make when a property includes street art.
W
hat happens when the paint on the outside of a
building suddenly becomes a property interest?
It’s a good question — one addressed in a shock-
ing landmark case involving a New York property
known as “5Pointz.”
In the 1970s, developer Jerry Wolkoff purchased vacant fac-
tory buildings comprising around 200,000 square feet in Long
Island City, Queens, for $1 million. The area was high crime
with high vacancy, and Wolkoff ’s plans were to hold the site
for eventual redevelopment. In the ’90s, Wolkoff granted local
graffiti artists permission to lease space in the property and cover
the walls — inside and out — with graffiti and other forms of
aerosol art. Over time, the site gained notoriety and acquired the
5Pointz moniker, representing the five boroughs of New York.
In the early 2000s, Wolkoff granted Jonathan Cohen, a graffiti
artist with the street name MeresOne, control of the site. Cohen
began curating the exterior spaces, helping to decide which areas
of the walls were granted to various artists, while handling other
caretaking and management duties.
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July | August 2019
Over the years, the colorful buildings, highly visible from the
7 train in Queens, attracted attention from other artists, tourists,
and art enthusiasts. The site hosted busloads of visitors, school-
children, and even wedding parties. It was also featured in mov-
ies, music videos, and ad campaigns.
In 2013, when Wolkoff believed the land had appreciated
enough to begin his redevelopment to residential towers, he noti-
fied Cohen of his intentions. The artist community that came
to call 5Pointz home was alarmed. After unsuccessful attempts to
have the site declared a landmark or to buy it, the artists sought
a preliminary injunction to prevent the demolition of the build-
ings under the Visual Artists Rights Act of 1990, or VARA. In
2013, a U.S. District court denied the injunction, but Wolkoff
had the buildings almost completely whitewashed before the
written ruling was issued.
Nine 5Pointz artists sued for damages under VARA, and
Judge Frederic Block shocked the real estate world in February
2018 by finding for the plaintiffs. He awarded statutory damages
for the destruction of 45 works, totaling $6.75 million. It was
COMMERCIAL INVESTMENT REAL ESTATE
by Michele Wood