Fragmentation of ownership

298Property Law

thing can be divided up into time slices. Take the following example: you and I have an aunt, a composer, who dies leaving the copyright in her music to me for the first ten years after her death and thereafter to you for the remainder of the copyright period. When she dies we will both acquire property interests in her music: I will have a present right to have the royalties paid to me for the next ten years, and simultaneously you will hold a present right to have the royalties paid to you from a date ten years on.

In this example, both my right and your right are property interests, but, as you might expect, this is not true of all the ways in which one might divide enjoyment of a thing into time slices. We consider here the basic technical rules which determine how enjoyment of a thing can be split up in this way so as to give rise to separate, simultaneous property rights to successive enjoyment of a thing. These rules are not particularly difficult, but they are of ancient origin, mostly vestigial remains of long-abandoned social and legal constructs, and consequently their rationale can be obscure and the terminology unfriendly.

8.2.1. Interests in possession, in reversion and in remainder

The first point starts as essentially a matter of vocabulary. Present rights to present enjoyment are said to be ‘in possession’, whereas present rights to future enjoyment are either ‘reversionary’ (or ‘in reversion’) or ‘in remainder’. There is no qualitative difference between a reversionary interest and a remainder interest: the distinction lies in the identity of the person who first acquires the interest. Specifically, reversionary interests involve enjoyment reverting back to the holder of the larger interest out of which the reversionary interest was carved, whereas remainder interests involve a movement of enjoyment forward to someone else. This distinction is significant because, while reversionary interests can, like remainder interests, be created deliberately, they will also arise by operation of law to fill any gap in a chain of time-sliced property interests. The general principle (not always to be applied too mechanistically, as we see later) is that, whenever rights to enjoyment of a thing are split up into time slices, the proprietary right to each slice must be vested in somebody, and unless it has been effectively allocated elsewhere by the grantor, it will automatically vest in the grantor. This is what Honore´ describes as the ‘residuarity’ element in ownership.

An example will make this clearer. Going back to our composer aunt, assume that, while alive, she held a ninety-nine-year lease of her studio and also owned a piano. As owner of the piano, she would be entitled to its use and enjoyment for a period unlimited in time. Consider three possible situations:

1When still alive, she gives both the piano and the lease of the studio to me for my lifetime, and then to you absolutely. As soon as the gift is made I acquire an interest in possession in both the piano and the lease (I will be entitled to the exclusive use of the piano and the studio during my lifetime – or, in the case of the studio, until the lease ends, if earlier), and you acquire an interest in remainder in them (i.e. you acquire a