ABSTRACT
In 2020, the Baltimore Museum of Art horrified the art world-it announced it would sell three high-profile works. Museum officials said the sales-a process known as deaccession-were necessary to care for the collection, support staff salaries, fund diversity and equity initiatives, and purchase art created by women and BIPOC artists. Importantly, museum industry standards have historically prevented using deaccession proceeds to pay staff salaries and maintain artwork. Custom dictated that deaccession proceeds only fund new acquisitions. The museum paused the sales when board members, donors, and the public rebelled. Deaccession is the most pressing issue facing not-for-profit museums and institutions across the country. COVID-19 shutdowns cratered museum revenue sending staff to gallery walls and storage warehouses to determine what art to keep and what to sell. While most institutional recipients of donated art today typically receive, or accession, artwork without donor-imposed restrictions, many significant pieces are donated in a manner that limits what can or cannot be done with the gifted art, including by prohibiting deaccession. Customs and practices aside, deaccessioning unrestricted art is legally straightforward. Yet, when it comes to the treatment of deaccessioning restricted donated art, judges, attorneys representing donors and institutions, and attorneys general, lack clear guidance.
This Article argues for adoption of a clear doctrinal solution to deaccessioning restricted donated art by treating that art like real property. In the real property law context, donors may control the disposition of land through defeasible fees, transfers that are subject to the Rule Against Perpetuities, and general principles including restraints on alienation. Each of these three real property rules grew out of policy considerations the likes of which arise in conditional gifts of art. Treating legal issues regarding restricted donated artwork through a real property-inspired legal regime encourages donors to give, ensures the continued public viewing of art, and provides institutions with a framework for avoiding many of the existing controversies around current deaccession practices.
De Barbieri, Edward and Reyhan, Patricia, Art As Real Property (May 16, 2025).
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