Co-ownership 575

3If A and B are buyers who provided the purchase money in unequal shares, they take in common in the same shares.

4 If A and B fall into none of these three categories, they take jointly.

The first three default rules are perfectly sensible. The fourth, residual, rule may produce unexpected disappointments to the heirs of whichever co-owner dies first, and in some common law jurisdictions it has been altered, so that they are presumed to be owners in common. However, it is still the rule of English law; an argument in its favour is that it is relatively easy for a joint owner to become an owner in common by simply writing a letter to the others stating that he is severing his interest from theirs.

CONCURRENT INTERESTS IN FINANCIAL ASSETS

In considering the notion of a share in property, the reader is confronted with an intangible. A share in a horse is not the horse: you cannot ride it, nor can anyone tell by looking at the animal that you own a share in it. To sell the horse you would hand over the animal itself. But some other method – typically documentary – has to be used in selling a share in the horse. Yet such intangibles are often very valuable. The concept proves very useful in the modern world of dematerialized securities. Under this system investors have no separate share certificates or bonds – indeed these do not exist – nor are shares in listed companies numbered. It is thus impossible to say that they own any specific, identified, securities. What each investor has is an account with the custodian of a pool of identical securities, denoting entitlement to a share in the financial asset constituted by the pool. This protects the investment from the custodian’s creditors in the event of the custodian’s insolvency. Though of course if the financial asset itself becomes worthless (by collapse of the issuer of the securities or squandering by the custodian) the investor’s property interest dies and he or she is left to whatever personal unsecured claim may be available.

CONCURRENT INTERESTS IN LAND

A word needs to be said here about the variant of co-ownership which is mandatory in England and Wales for any situation in which two or more persons are concurrently entitled to the possession of land. Above it was said that two (or more) persons cannot at the same time enjoy property jointly and in common. But it is perfectly possible for the same two or more persons to manage property jointly but enjoy it in common. It is not unusual to find two or more people holding joint powers of control and management in trust for themselves as owners in common. This means that, among themselves, each has a separate inheritable share as to the enjoyment of the property (its use, rents, and so on). But to the outside world they are joint owners, so a purchaser from the survivors need not concern herself with the estate of any deceased co-owner. So long as, in good faith, she pays the price to the survivors (and, in the case of land, so long as there are two of them) she takes free from any claim. The survivors hold the purchase price ‘on trust’ for themselves and for the deceased, whose share is fully protected against their insolvency, and largely protected against