NYS Museum Property Law

This law gives the state’s museum community a process to establish ownership of undocumented collections, long-forgotten loans, and doorstep donations—property that has long been a burden for many institutions. New York is the 36th state to have a statute to this effect.

Without the law museums and other collecting institutions were without clear, legal guidelines for making a claim of ownership for many objects that might have been deposited at the museum before procedures such as deed of gift forms and short-term loans were utilized. This law establishes a fair mechanism by which museums may resolve old loans and the ownership of undocumented property.

Further, the law requires museums to offer their collection management policies to donors and it prohibits museums from using deaccessioning proceeds for anything other than acquisition, preservation and care of collections.

This article summarizes the main provisions of the law and how you can put it into practice. You can read the language of the law here.

This information is intended as a summary only. Anyone preparing to implement the provisions of the law should become familiar with the complete document and seek the advice of an attorney if they have any questions.

What is the Museum Property Law

The new amends Section 233-a of the state education law, which provided recourse only to the New York State Museum. It went into effect on September 4, 2008.

Whom it Covers

The law covers a wide variety of collecting institutions, including but not limited to museums, historical societies, zoos, aquariums, botanical gardens, and arboreta, having collections as a stated purpose in its charter. The law states that the institution must be a governmental entity or a not-for-profit corporation.

What it Covers

1. Acquiring Title to Property

The law covers tangible objects (animate or inanimate) in a museum’s care which have “intrinsic” historic, artistic, scientific or cultural value.

Two types of objects are covered: 1) unclaimed property, meaning property held with a loan agreement which has either expired or was loaned for an indefinite term (often called “permanent loans”); and 2) undocumented property, meaning property for which the museum cannot determine the lender, donor or owner after making a good faith search to find the owner (this property is often deemed “found in collections”).

A museum must demonstrate that it has held unclaimed indefinite loans or undocumented property for at least ten years before beginning the process. The exception to the ten year period is for loans of a definite period of time where the lender has failed to claim the property. In this instance, the museum must demonstrate that it has held the property for five years after the date upon which the loan was to have expired.

2. Notifying Collections Donors of Institutional Collecting Policies, Including Deaccession

The law also requires museums to provide donors or prospective donors with a written copy of their mission statements and collections policies, which shall include policies and procedures pertaining to deaccessioning (the NYS Board of Regents’ Rules require chartered museums to have written collections policies that address deaccessioning).

(As a safeguard measure, MANY suggests that institutions create a check-off box on their deed of gift forms affirming that a mission statement and collection policies were offered to a donor.)

If the museum has knowledge of a planned bequest of property, it must provide the testator with a written copy of its mission statement and collections policy, which shall include the museum’s policies and procedures pertaining to deaccessioning.

(If you have your mission statement and collections policy openly available on your website, you are considered compliant with the planned bequest of property provision.)

3. Use of Proceeds from the Sale of Property the Museum Acquires Under this Law

Proceeds derived from the sale of property the museum acquires under this law will be used only for collection acquisition or protection and care of the collection. Proceeds cannot be used to defray the ongoing operating expenses of the museum. (The NYS Board of Regents’ Rules apply this to all permanent collections in chartered museums.)

4. Applying Conservation Measures to Loaned Property

A museum will notify lenders in writing of any known injuries or losses of loaned property or of the need to apply conservation measures. The notice will advise the lender to his or her right to terminate the loan in lieu of conservation, and no later than thirty (30) days after having received the notice, either retrieve the property or arrange for its isolation and retrieval.

Unless there is a written loan agreement to the contrary, the museum may apply conservation measures to property on loan without giving formal notice or first obtaining the lender’s permission if immediate action is required to protect the property on loan if it is a hazard to the health and safety of the public or museum staff provided that the museum is 1) unable to reach the lender at the lender’s address or phone number before the time by which the museum determines the action is necessary, or 2) the lender does not grant permission within three (3) days or terminate the loan/retrieve the property within thirty (30) days.

Notwithstanding the foregoing, the statute also provides that if immediate conservation measures are necessary, the museum does not need to seek the lender’s permission or wait for the lender to terminate the loan and retrieve the property.

Who pays for such treatment, depending on the situations outlined in the law, is also addressed.

5. Collection Record-keeping

Museums will maintain records of acquisition, of deaccession, and loan of property currently held. These records will contain the names and contact information of donors and lenders, descriptions of property; and terms and restrictions of acquisition, deaccession or loan, including copies of all documents conveying title or loan.

In the case of property acquired pursuant to this law, records documenting the search for identity and last known address of the lender, and copies of all notices and other documents prepared or received by the museum in connection with the acquisition of title to such property shall be maintained by the museum as part of the property’s file.

What the Law Does Not Cover

Museums cannot use this statute to take title to two types of property: 1) “Nazi-era” (1933-1945) disputed works, and 2) stolen property.

If you want to learn more about these issues visit the American Alliance of Museums (AAM) Nazi Era Internet Portal, www.nepip.org, and the Art Loss Register, www.artloss.com.

How to Acquire Title

Below are the main provisions for compliance when implementing the law at your institution. If you do choose to utilize the law, we recommend reviewing the complete document to ensure proper compliance.

· Unclaimed Property – Where Lender is Known

You are required to provide written notice (“Notice of Termination”) via certified mail, return receipt requested, to the lender/last known owner at the most recent address of your intent to claim title under the provisions of this law. [see sample letter below]

If the lender/last known owner does not respond to the “Notice of Termination” letter within 120 days of receipt of the letter, the museum will send a second notice to the lender [see sample letter below]

If the lender/last known owner does not respond to the second notice within one hundred twenty (120) days of receipt of the notice, the museum shall automatically acquire all of the lender’s rights to the property.

· Unclaimed Property – Where Lender is Unknown or When Certified Letter is Undeliverable and Undocumented Property

Notwithstanding any other provision of law regarding abandoned or lost property, a museum may acquire the rights of the lender, donor, or owner to unclaimed property and undocumented property by giving notice by publication each week for three consecutive weeks in a newspaper of general circulation, in the county where the museum is located and the county of the last known address of the lender/owner (if known). [see sample notice below]

If no one contacts the museum with documentation or other evidence establishing ownership interest in the property within 180 days of the notice’s appearance in the newspaper, the museum will place a brief description of the property on the Unclaimed Funds Registry of the Comptroller’s website for one hundred eighty (180) days.

If no one contacts the museum with documentation or other evidence establishing ownership interest in the property prior to or within 30 days following the conclusion of the Unclaimed Funds Registry posting, the museum shall acquire title to the property.

· Unsolicited Undocumented Property Left at a Museum after January 1, 2009

Beginning January 1, 2009, a museum shall acquire the rights to undocumented property that is not solicited by the museum and that is delivered to the museum or left on the museum premises, if no one comes forward to establish ownership interest in it within 90 days of delivery of such property to the museum.

What Happens if Your Museum Receives a Claim?

If a claim to property is received, the onus of proving the claim rests with the claimant. The museum will need to investigate the validity of the claim and the claimant will need to provide proof of ownership. If the museum agrees with the claim, it can simply arrange to turn the property over to the claimant.

If there are competing or disputed claims (whether it’s between the museum and a claimant, or multiple heirs) a decision by judicial action may need to be made. We recommend you consult with an attorney if you have specific questions related to dealing with claimants.

Further Resources

American Association of Art Museum Directors. “Art Museums and the Practice of Deaccessioning.”

American Alliance of Museums (AAM) Registrar’s Committee

A Legal Primer on Managing Museum Collections, 2nd edition, Marie C. Malaro, Smithsonian Institution Press, 1998.

Museum Handbook, National Park Service

Abandoned Property Project, Society of American Archivists (SAA)

Sample Language for Letters and Newspaper Notices

UNCLAIMED LOAN: “NOTICE OF TERMINATION” (CERTIFIED LETTER)

The records of the ______________ Museum indicate that you have or may have property on loan at [name of facility]. The museum is seeking to determine whether you wish:

· that the museum return the property to you

· that the property remain on loan to the museum subject to annual renewal [if the museum also wishes that the property remain on loan], or

· that the museum obtain all of your rights to the property, either to take the property into its collection or to dispose of the property, in its sole discretion.

Please contact [name of contact] in writing within one hundred twenty (120) days to advise the museum as to which of the above alternatives you wish to follow.

UNCLAIMED LOAN: SECOND WRITTEN NOTICE (CERTIFIED LETTER)

On [date of first notice], the [name of Museum] sent you a notice concerning property that, according to our records, has been lent to the [name of Museum]. You have not responded to that notice, a copy of which is enclosed, and the museum will commence proceedings to acquire title to the property if you do not contact [name of contact] in writing within one hundred twenty (120) days of receiving this second notice.

UNDOCUMENTED PROPERTY: NEWSPAPER NOTICE, “NOTICE OF INTENT TO ACQUIRE PROPERTY”

The notice must be titled “Notice of Intent to Acquire Property” and must include a statement containing substantially the following information:

“The [name of museum] hereby asserts its intent to acquire title to the following property: [brief description of property]. If you claim ownership to this property, you must contact the museum in writing to make arrangements to collect the property. If you fail to do so within one hundred eighty (180) days, the museum will commence proceedings to acquire title to the property. If you wish to commence legal proceedings to claim the property, you should consult an attorney.”

NYS Museum Property Law

Article 5, Section 233.aa of the New York State Education Law

The full text is available here.

§ 233-aa. Property of other museums.

1. As used in this section:

(a) The term “museum” means any institution, including but not limited to museums, historical  societies, zoological gardens, aquariums, botanical gardens, and arboreta, having collecting as a stated  purpose in its charter, or owning or holding collections, or intending to own or hold collections, that is a  governmental entity or not-for-profit corporation. The term museum does not include the state museum.

(b) The term “deaccession” means the permanent removal or disposal  of   property  from  the  collection  of  a  museum  by  virtue  of its sale,   exchange, donation, or transfer by any means to any person.

(c)  The  term  “person”  means  any  natural   person,   partnership,   corporation,  company,  trust  association,  or  other  entity,  however   organized.

(d)  The  term  “property”  means  any  inanimate  object,   document,   organism,  or  tangible object under a museum’s care which has intrinsic   historic, artistic, scientific, or cultural value.

(e) The term “loan” means a deposit of  property  with  a  museum  not   accompanied by a transfer to such museum of title to the property.

(f)  The term “lender” means a person legally entitled to, or claiming   to be legally entitled to, property held  by  the  museum  or,  if  such   person is deceased, the legal heirs of such person.

(g) The term “unclaimed property” means property which is on loan to a   museum  and in regard to which the lender, or anyone acting legitimately   on the lender’s behalf, has not contacted the museum for  at  least  ten   years from the date of the beginning of the loan, if the loan was for an   indefinite  or undetermined period, or for at least five years after the   date upon which the loan for a definite period expired.

(h) The term “undocumented property” means property that has  been  in   the  possession  of  a  museum  for at least ten years and for which the   museum cannot determine the lender, donor, or owner  by  making  a  good   faith  and  reasonable search for the identity and last known address of   the lender, donor or owner from the museum  records  and  other  records   reasonably available to museum staff.

(i)  The  term  “conservation  measures”  means  any  actions taken to   preserve or stabilize a property, including, but not limited to,  proper   storage, support, cleaning, and restoration.

2.  The  acquisition  of property by a museum pursuant to this section   must be consistent with the mission of the museum.

3. Prior to the acquisition of property by gift, a museum shall inform   a donor or prospective donor of the provisions of this section and shall   provide a donor or prospective donor with a written copy of its  mission   statement  and  collections  policy,  which  shall  include policies and   procedures of the museum related to deaccessioning.

4. If the museum has knowledge of a planned bequest  of  any  property   prior  to  the  death  of  the  testator,  the  museum shall provide the   testator with a written copy of its mission  statement  and  collections   policy,  which  shall  include  policies  and  procedures  of the museum   relating to deaccessioning, provided,  however,  that  any  museum  that   routinely  makes  its mission statement and collections policy available   on its website shall be deemed to have complied with this subdivision.

5. Proceeds derived from the sale of any property title to  which  was   acquired by a museum pursuant to this section shall be used only for the   acquisition   of  property  for  the  museum’s  collection  or  for  the   preservation, protection, and care of the collection and  shall  not  be   used to defray ongoing operating expenses of the museum.

6.  (a)  Notice  by mail required by this section shall be mailed to a   lender’s last known address by certified mail, return receipt requested; provided, however, that notice shall be given by publication pursuant to   paragraph (b) of this subdivision if the museum does not:

(i) know the identity of the lender; or

(ii) know the address of the lender; or

(iii)  receive  proof  that  the  notice mailed under this section was   received within thirty days of mailing.

(b) Notice by publication must be given at least once a week for three   consecutive weeks in a newspaper of general circulation in:

(i) the county in which the property is held by the museum; and

(ii) the county of the lender’s last address, if known.     The date of notice under this paragraph shall be the date of the third   published notice.

(c) In addition to any other information required by this section, any   notice given under this section must contain the following:

(i) The name of the lender, if known.

(ii) The last address of the lender, if known.

(iii) A brief description of  the  property  on  loan  to  the  museum   referenced in the notice.

(iv)  The  date  of  the  loan,  if  known, or the approximate date of   acquisition of the property.

(v) The name and address of the museum.

(vi) The name, address, and telephone  number  of  the  person  to  be   contacted regarding the property.

(d)  A  copy  of  all  notices  required by this section pertaining to   property in the form of identifiable works of art  known  to  have  been   created  before nineteen hundred forty-five and to have changed hands in   Europe during the Nazi era (1933-1945) shall be sent  to  The  Art  Loss   Register  or  any  successor  organization having similar purposes on or   before the date on which such notices  are  mailed  or  first  published   pursuant to the requirements of this section.

7.  Unless  there  is  a  written  loan agreement to the contrary, and   notwithstanding any other provision of law regarding abandoned  or  lost   property,  a museum that has made a good faith and reasonable search for   the identity and last known  address  of  the  lender  from  the  museum   records  and  other  records  reasonably  available  to museum staff may   terminate a loan for unclaimed property in its possession in  accordance   with the provisions of this subdivision.

(a)  If  the  museum  has  identified the lender and the lender’s last   known address, the museum shall give notice by mail, in accordance  with   subdivision six of this section, of its intent to terminate the loan.

(b)  Such  notice  shall  be entitled “Notice of Termination” and must   include a statement containing substantially the following  information:   “The  records of the (name of museum) indicate that you have or may have   property on loan at  (name  of  facility).  The  museum  is  seeking  to   determine whether you wish:

(i) that the museum return the property to you,

(ii)  that the property remain on loan to the museum subject to annual   renewal (if the museum also wishes that the property remain on loan), or

(iii) that the museum  obtain  all  of  the  lender’s  rights  to  the   property,  either to take the property into its collection or to dispose   of the property,  in  its  sole  discretion.  Please  contact  (name  of   contact)  in writing within one hundred twenty days to advise the museum   as to which of the above alternatives you wish to follow.”

(c) If the lender does not  respond  to  the  notice  of  termination,   within  one  hundred  twenty  days following receipt thereof, the museum   shall send a second  notice  to  the  lender  containing  the  following   information: “On (date of first notice), the (name of museum) sent you a   notice concerning property that, according to our records, has been lent to  the  (name of museum). You have not responded to that notice, a copy   of which is enclosed,  and  the  museum  will  commence  proceedings  to   acquire title to the property if you do not contact (name of contact) in   writing within one hundred twenty days of receiving this second notice.”

(d)  If  the  lender  fails to respond to the second notice within one   hundred twenty days of receipt thereof, the museum shall acquire all  of   the lender’s rights to the property.

(e)  If  the  museum  does  not  receive proof that the notices mailed   pursuant to  this  subdivision  were  received  within  thirty  days  of   mailing,  or  if  the  museum has undertaken a good faith and reasonable   search of museum records  and  other  records  reasonably  available  to   museum  staff  but  has  been  unable to determine the identity and last   known address of the lender,  the  museum  may  terminate  the  loan  by   complying  with  the procedures established in subdivision eight of this   section for acquisition of title to undocumented property.

8. (a) Notwithstanding any other provision of law regarding  abandoned   or  lost property, a museum may acquire the rights of the lender, donor,   or owner to undocumented property by giving notice  by  publication,  in   accordance  with  subdivision  six of this section, that it is asserting   title to the undocumented property.

(b) Such notice  shall  be  entitled  “Notice  of  Intent  to  Acquire   Property”  and  must  include  a  statement containing substantially the   following information: “The (name of museum) hereby asserts  its  intent   to  acquire  title  to  the  following  property:  (brief description of   property). If you claim ownership of this property, you must contact the   museum in writing and make arrangements to collect the property. If  you   fail  to  do so within one hundred eighty days, the museum will commence   proceedings to acquire title to the property. If you  wish  to  commence   legal   proceedings  to  claim  the  property,  you  should  consult  an   attorney.”

(c) If the museum does not receive contact from  any  person  who  can   provide  documentation  or  other  evidence  establishing  an  ownership   interest in the property within one hundred eighty days of the  date  of   notice by publication, the museum shall cause a brief description of the   property  to  be  submitted  to  the  comptroller,  who  shall post such   description on the unclaimed  funds  registry  for  not  less  than  one   hundred eighty days.

(d)  If  the  museum  does not receive contact from any person who can   provide  documentation  or  other  evidence  establishing  an  ownership   interest  in  the  property prior to or within thirty days following the   conclusion of the unclaimed funds registry  posting,  the  museum  shall   acquire title to the property.

9.  The  provisions  of  subdivisions  seven and eight of this section   shall not apply to:

(a) any property that was created before nineteen  hundred  forty-five   and  changed  hands due to theft, seizure, confiscation, forced sale, or   other involuntary means in Europe during the Nazi era (1933-1945); or

(b) notwithstanding any copy of a notice sent pursuant to  subdivision   six  of  this  section,  any  property  reported  as  stolen  to  a  law   enforcement agency or insurer or The Art Loss Register or any  successor   organization having similar purposes no later than three years following   the theft or discovery of the theft.

10. A museum shall acquire all rights to undocumented property that is   not  solicited by the museum and that is delivered to the museum or left   on museum premises after January first, two thousand nine if  no  person   provides  documentation  or  other  evidence  establishing  an ownership   interest in the property within ninety days of delivery of such property   to the museum.

11.(a) The museum shall give a lender prompt written notice  by  mail,   in  accordance with subdivision six of this section, of any known injury   to, or loss of, property on loan or of the need  to  apply  conservation   measures.  Such  notice  shall advise the lender of his or her right, in   lieu  of the application of such conservation measures, to terminate the   loan and, no later than thirty days after having received  such  notice,   either retrieve the property or arrange for its isolation and retrieval.   The  museum shall not be required to publish notice of injury or loss to   any undocumented property.

(b) Unless there is a written loan  agreement  to  the  contrary,  the   museum may apply conservation measures to property on loan to the museum   without  giving formal notice or first obtaining the lender’s permission   if immediate action is required to protect the property on loan or other   property in the custody of the museum or if the property on  loan  is  a   hazard  to  the  health  and  safety  of the public or the museum staff;   provided that:

(i) the museum is unable to reach the lender at the  lender’s  address   or  telephone  number  before  the  time  by which the museum determines   action is necessary; or

(ii) the  lender  either  (1)  does  not  respond  to  a  request  for   permission to apply conservation measures within three days of receiving   the  request  or  will not agree to the conservation measures the museum   recommends; or (2) fails to terminate the loan and either  retrieve  the   property  or  arrange for its isolation and retrieval within thirty days   of receiving the request.     If immediate  conservation  measures  are  necessary  to  protect  the   property  or  to  protect  the  health or safety of the public or museum   staff, the conditions set forth in subparagraphs (i) and  (ii)  of  this   paragraph shall not apply.

(c)  Unless  provided  otherwise in an agreement with the lender, if a   museum applies conservation measures to property under paragraph (a)  of   this  subdivision, and provided that the measures were not required as a   result of such museum’s  own  action  or  inaction,  such  museum  shall   acquire  a  lien  on the property in the amount of the costs incurred by   such museum, including, but not  limited  to,  the  cost  of  labor  and   materials,  and  shall  not  be  liable  for  injury  to  or loss of the   property, provided that such museum:

(i) had a reasonable belief at the time when the action was taken that   the action was necessary to protect the property on loan or otherwise in   the custody of the museum or that such property on loan was a hazard  to   the health and safety on the public or the museum staff; and

(ii)  exercised  reasonable  care  in  the  choice  and application of   conservation measures.

12. A lender shall promptly notify a museum, in writing, of any change   of address or change in the  ownership  of  property  on  loan  to  such   museum.

13. The museum shall maintain or continue to maintain, as the case may   be  and to the extent such information is reasonably available, a record   of acquisition, whether by purchase, bequest, gift, loan  or  otherwise,   of  property  for display or collection and of deaccessioning or loan of   property  currently  held  or  thereafter  acquired   for   display   or   collection. Any such record shall:

(a)  state  the name, address, and telephone number of the person from   whom  such  property  was  acquired,  or  to  whom  such  property   was   transferred  by  deaccessioning  or  loan,  and  a  description  of such   property, its location, if known, and the terms of  the  acquisition  or   deaccessioning  or  loan,  including  any  restrictions as to its use or   further disposition, and any other material facts about  the  terms  and conditions  of  the  transaction,  which  records  shall be updated if a   lender informs the museum of a  change  in  address,  ownership  of  the   property  or  other  relevant  information,  or if the lender and museum   negotiate a change in the terms of the transaction;

(b)  include  a  copy  of  any  document of conveyance relating to the   acquisition or deaccessioning or loan of such property and  all  notices   and other documents prepared or received by the museum; and

(c) in the case of property acquired pursuant to this section, include   records  documenting  the search for the identity and last known address   of the lender, and copies of all notices and other documents prepared or   received by the museum in connection with the acquisition  of  title  to   such property.

14.  Nothing  in  this section shall limit the ability of a lender and   museum to bind  themselves  to  different  loan  provisions  by  written   agreement,  nor  shall this section abrogate rights and obligations of a   lender or museum pursuant to a written agreement.