While property scholars have argued persuasively for a unified law of servitudes and for a unified law of defeasible fees, Professor Korngold argues that further unification is necessary: the law should integrate servitudes and defeasible fees involving land use controls. Because these interests are functional equivalents, judicial results should not depend on the historical label attached to the interest. Courts should address the tension between freedom of contract and free alienability values that inhere in both interests. Professor Korngold focuses on significant issues that arise in both defeasible fees and servitudes contexts, including the forfeiture remedy, ownership in gross, permissible subject matter, and termination and modification doctrines. A unified law can resolve these important issues satisfactorily and accommodate the intentions of parties who create land use controls. Either the courts or legislatures can accomplish this unification, which would further the goals of a modern, integrated property law.
Texas Law Review, Vol. 66, Issue 3 (February 1988), pp. 533-576