Nazi Looted Art Heirs Receive Some Legislative Support for Claims

By Megan Schwartz, Arts Law paralegal

Overview

Between 1933 and 1945, the Nazis amassed the art and cultural objects of European Jewry. They achieved this through confiscation, theft, seizure, or sales under duress.

The Nazis achieved this through the creation of laws such that Jewry were legally prevented from all forms of property ownership, including bank accounts.

Jewry that were not rounded up and sent to death camps, work camps, death marches, or ghettos, attempted to sell what little (if anything) they had left to attempt to escape certain death at the hands of the Nazis. From as early as the 1920s, borders began to shut against Jewish refugees attempting to flee Nazi encroachment into Europe.

The Einsatzstab Reichsleiter Rosenberg (ERR) was the primary Nazi agency that looted these works. Surviving ERR records show ‘hundreds of thousands of [property] listings. Many of these works ended up in private and public collections.

Negotiations between the Claims Conference and the German government in 1951 resulted in compensation laws for surviving Jewry. It also resulted in support for survivors and their heirs to make restitution claims for the return of looted artwork and cultural property.

Restitution

Claimants rely on the laws of restitution, which seek to reverse the enrichment that was considered unjust. The enrichment is considered unjust due to duress or illegality. Duress is where pressure is applied to one party from another, to induce them into doing something. Restitution is the claim for relief. It is the claim for compensation for loss of value of goods.

Claims obstacles

Survivors and their heirs face numerous obstacles. These obstacles continue to prevent and/or extinguish claims. Obstacles include a number of evidential requirements, which will be impacted by the decades passed since the Holocaust.

These evidential requirements include the current location of the property. Despite the number of online databases dedicated to archiving lost property, potential claimants are generally in the dark about location unless the property happens to be in a public collection.

A second requirement is the ownership history of the property (“provenance”), including evidence of transfer, enabling an argument that transfer from the legitimate owners was in bad faith or under duress, thus allowing for equity to trigger actions in restitution.

Even where a claimant has knowledge of the location of the work and has surviving evidence of how the work was transferred, and the financial capacity to hire a legal team and mount a claim in restitution, often against defendants whose ‘resources vastly outmatch their own’, defendants to these claims may be able to assert a defence, extinguishing the claim.

Defences

There are a number of defences that may succeed against a claimant. These defences aim to create a balance in equity. Time based defences include laches, adverse possession, acquisitive prescription and usucapion. Non-merits discretionary defences include act of state doctrine, forum non conveniens, international comity and prudential exhaustion. Many of these defences have extinguished claims.

A common barrier to claims is the defence of laches, which bars claims based on an unreasonable delay. The defendant who seeks to assert this claim against a claimant must also show prejudice was caused because of the delay. Prejudice for the defendant includes loss of evidence, including witness testimony, for instance.

Eighty-one years have passed since Nazi defeat, yet despite society’s support for the return of art taken or sold during Nazi occupation,claims continue to be defeated by time.

Legislative changes that may impact claims

Recently two jurisdictions have introduced and expanded legislation that may assist in return of property despite legislative or procedural barriers.

Charities Act 2022 (United Kingdom)

In the United Kingdom (UK), public museums and galleries are typically national collections created through trusts. There are multiple pieces of legislation that cover actions in relation to collection objects held in national public collections. Historically, national collections are restricted from disposing of property, allowing it only in certain limited circumstances.

The Charities Act (the Act)alters the above restriction in certain limited circumstances. Under the Act, collection trustees can make ex gratia applications of charity property of a certain value (depending on the charity’s income and the value of the object), without external authorisation. Prior to the Act, trustees had to apply to the Attorney General to make an ex-gratia payment.

Initially passed in 2011, the Act was amended in 2022. Two notable sections have now been brought into force. These sections provide power to dispose of collection objects if certain conditions are met. It sets out conditions for disposal based on gross earnings of the collection and limits the value of the property to be disposed:

Collection exceeds £1 million, the relevant threshold is £20,000
Collection exceeds £250,000 but not £1 million, the relevant threshold is £10,000
Collection exceeds £25,000 but not £250,000, the relevant threshold is £2,500
Collection did not exceed £25,000, the relevant threshold is £1,000

The Act also empowers the Charities Commission, the Attorney General or the court to authorise charity trustees to take an action where they would otherwise not have the power, but where the action should be taken as a moral obligation.

These sections are a good step in allowing disposal despite the collections’ charitable status (with restrictive collection requirements). However, the Act explicitly exempts major national museums and galleries, limiting its force.

Holocaust Expropriated Art Recovery (HEAR) Act 2025 (United States)

The United States has passed into law the HEAR Act 2025, which extends and expands the original HEAR Act 2016 (Hear Act).

The Hear Act creates a national six-year time limit from the time a claimant gains knowledge of the property’s location. Notably, unlike its predecessor, this Act does not contain a sunset date.

The purpose of the 2025 Act is to limit the application of procedural defences, including those based on the passage of time and other non-merits defences to claims under the Act.

It specifically names defences to restitution in the Act’s intention, noting that ‘in order to effectuate the purpose of the Actto permit claims to recover Nazi-looted art to be resolved on the merits, these defences must be precluded’. It therefore expands the ability of potential claimants to bring claims.

The Act also refers to a provision within the Foreign Sovereign Immunities Act (FSIA), providing circumstances where US courts would have jurisdiction over foreign states, where the taking and keeping of property is in violation of international law.

However, the US Supreme Court has recently noted that the Act does not preclude the defence of laches.

Australian context

Australia has no legislation that addresses restitution claims by Holocaust survivors or heirs. Australia’s Protection of Moveable Cultural Heritage Act 1986 (Cth) (PCMH Act) requires State Parties to ensure their collecting institutions do not accept illegally exported items. Australia has few publicly reported restitution claims.

They include: the National Gallery of Victoria returning Gerard ter Borch’s Lady with a Fan to German Jewish heirs of Henry and Bertha Bromberg in 2025, the 2021 repatriation of a perfume bottle once part of a Polish Jewish to heirs and donated to the Sydney Jewish Museum, and the 2014 return by the NGV of a [formerly attributed] Vincent Van Gogh’s Head of a Man to heirs in South Africa.