Real Property

Real Property law governs the rights, interests, and obligations relating to land and things attached to it. For the California Bar Exam, you must master both the common-law rules tested on the MBE and the California-specific statutory modifications tested on the essay portion. This guide covers every major subtopic in the depth needed for full-credit answers.

I. Estates in Land

An estate is a possessory interest in land measured by some period of time. Estates are classified by their duration and the conditions attached to them.

A. Freehold Estates

1. Fee Simple Absolute

• Definition: The largest possible estate in land; potentially infinite duration with no conditions on ownership.
• Language: "To A" or "To A and her heirs." The words "and her heirs" are words of limitation (describing the estate), not words of purchase (identifying a grantee).
• Modern Presumption: Any conveyance is presumed to transfer a fee simple absolute unless the grantor clearly indicates otherwise.
• Key Feature: Freely alienable, devisable, and descendible. No future interest is retained by the grantor.

2. Defeasible Fees

A fee simple that may be cut short upon the occurrence (or non-occurrence) of a specified condition. There are three types:

Type	Language	Future Interest	How It Ends
Fee Simple Determinable	"To A so long as," "while," "during," "until"	Possibility of reverter (grantor)	Automatically upon occurrence of the stated event
Fee Simple Subject to Condition Subsequent	"To A, but if… grantor may re-enter," "on condition that," "provided that"	Right of entry / power of termination (grantor)	Only when the grantor exercises the right of entry
Fee Simple Subject to Executory Limitation	"To A, but if… then to B"	Executory interest (third party)	Automatically divests upon the stated event, passing to third party

3. Life Estate

• Definition: An estate measured by the life of one or more persons. "To A for life."
• Life Estate Pur Autre Vie: Measured by the life of someone other than the holder. "To A for the life of B."
• Future Interest: A life estate is always followed by either a reversion (in the grantor) or a remainder (in a third party).
• Duties of Life Tenant:
  • Must pay ordinary maintenance and keep the property in reasonable repair.
  • Must pay interest on any mortgage (but not the principal) and property taxes to the extent of income or fair rental value.
  • Must not commit waste:
    • Affirmative (voluntary) waste: Overt conduct that decreases value (e.g., demolishing structures, exploiting natural resources beyond the open mines doctrine).
    • Permissive (involuntary) waste: Failure to maintain, pay taxes, or make necessary repairs.
    • Ameliorative waste: Changes that increase value. Traditionally actionable; modern trend (and California rule) permits if it does not diminish value and changed conditions make the current use unreasonable.

B. Non-Freehold (Leasehold) Estates

Type	Duration	Creation	Termination
Tenancy for Years	Fixed, definite period (days, months, years)	Agreement (writing required if >1 year under SOF)	Automatically at end of term; no notice required
Periodic Tenancy	Recurring period (month-to-month, year-to-year)	Express agreement, implication (e.g., rent paid monthly), or holdover	Notice required: common law = at least equal to the period (max 6 months for year-to-year); CA = 30 days for month-to-month, 60 days if tenant occupied >1 year
Tenancy at Will	No fixed period; lasts as long as both parties desire	Express agreement or implication	Either party may terminate at any time; reasonable notice required
Tenancy at Sufferance	Holdover tenant wrongfully remaining	Tenant stays after lease expires	Landlord either evicts or binds tenant to a new periodic tenancy

II. Future Interests

A. Future Interests in the Grantor

• Reversion: The interest remaining in the grantor who has transferred a lesser estate (e.g., life estate, term of years). Arises automatically; need not be expressly stated. Always vested; not subject to RAP.
• Possibility of Reverter: Accompanies a fee simple determinable. The estate automatically returns to the grantor if the condition is violated. Not subject to RAP at common law.
• Right of Entry (Power of Termination): Accompanies a fee simple subject to condition subsequent. Grantor must affirmatively elect to re-enter. Not subject to RAP at common law.

B. Future Interests in Third Parties (Transferees)

1. Remainders

A remainder is a future interest created in a third party that is capable of becoming possessory upon the natural expiration of the prior estate. A remainder never divests a prior estate.

Type	Definition	Example	RAP?
Vested Remainder	Created in an ascertained person with no condition precedent (other than the natural termination of the prior estate)	"To A for life, then to B." B has a vested remainder.	Indefeasibly vested: No
Vested Remainder Subject to Open (VRSO)	Vested in at least one member of a class, but the class may increase	"To A for life, then to A's children." If A has one child (B), B has a VRSO.	Yes (class gift rule)
Vested Remainder Subject to Total Divestment	Vested but may be entirely divested by a condition subsequent	"To A for life, then to B, but if B fails to graduate, then to C."	The divesting condition (executory interest) is subject to RAP
Contingent Remainder	Created in an unascertained person OR subject to a condition precedent	"To A for life, then to B if B graduates from law school."	Yes

2. Executory Interests

• Shifting Executory Interest: Divests (cuts short) another transferee's interest. "To A, but if A stops using the land as a farm, then to B."
• Springing Executory Interest: Divests the grantor's interest or springs out of the grantor at a future date. "To A if A passes the bar exam."
• Both types are always subject to the Rule Against Perpetuities.

C. The Rule Against Perpetuities (RAP)

Applies to: Contingent remainders, executory interests, vested remainders subject to open (class gifts), options to purchase (held by non-tenants).

Does NOT apply to: Reversions, possibilities of reverter, rights of entry, vested remainders (indefeasibly vested or subject to total divestment—only the divesting executory interest is tested).

RAP Analysis Steps

1. Classify the interest. Is it subject to RAP?
2. Identify the condition precedent that must be satisfied for the interest to vest.
3. Find a validating life—a person alive at the creation of the interest who will necessarily determine whether the condition is met within 21 years of that person's death.
4. If no validating life exists, the interest violates RAP and is void.

Classic RAP Traps (Click to Expand)

• The Unborn Widow: "To A for life, then to A's widow for life, then to A's children then living." A's "widow" is unascertained and might be someone not yet born. The gift to A's children violates RAP.
• The Fertile Octogenarian: Under classic RAP, every living person is conclusively presumed capable of having children, regardless of age. So "To A for life, then to A's children who reach 25" can violate RAP if A might have a new child who won't reach 25 within 21 years of any life in being.
• The Slothful Executor: "To A when A's estate is settled." Estate administration could theoretically take more than 21 years. Interest is void.
• Class Gifts—"All or Nothing" Rule: If the gift to any member of the class could vest too remotely, the entire class gift fails (unless saved by the rule of convenience, which closes the class when any member is entitled to distribution).

III. Concurrent Estates

A. Tenancy in Common

• Default concurrent estate in most jurisdictions (and in California).
• Each co-tenant owns an undivided interest in the whole; interests need not be equal.
• No right of survivorship. Each share is freely alienable, devisable, and descendible.
• Each co-tenant has the right to possess and use the entire property (unity of possession).

B. Joint Tenancy

• Co-ownership with the right of survivorship: when one joint tenant dies, that share automatically passes to the surviving joint tenant(s), outside of probate.
• Four Unities Required (T-TIP):
  • Time — interests must be acquired at the same time.
  • Title — interests must be acquired by the same instrument.
  • Interest — interests must be equal in size and duration.
  • Possession — each must have the right to possess the whole.
• Must be created with express language indicating right of survivorship (e.g., "to A and B as joint tenants with right of survivorship").

Severance of Joint Tenancy

Any joint tenant may unilaterally sever the joint tenancy, converting it into a tenancy in common (destroying the right of survivorship). Severance methods:

• Inter vivos conveyance: A joint tenant who conveys their interest to a third party severs the joint tenancy as to that share. The grantee holds as tenant in common; remaining joint tenants retain joint tenancy between themselves.
• Mortgage:
  • Title theory states: A mortgage severs the joint tenancy (mortgage is treated as a conveyance).
  • Lien theory states (majority, including California): A mortgage does not sever the joint tenancy because it is merely a lien, not a transfer of title.
• Lease: Jurisdictions split. Some hold a lease severs; others (including California) hold it does not.
• Contract to convey: Under equitable conversion, a contract to sell severs the joint tenancy.
• Mutual agreement: All joint tenants may agree to convert to tenancy in common.
• Judicial partition: Court-ordered partition in kind (physical division) or partition by sale.

C. Tenancy by the Entirety

• Available only to married couples in states that recognize it. Requires the four unities plus the unity of marriage.
• Right of survivorship; neither spouse can unilaterally sever.
• Protected from the creditors of only one spouse in most states.
• California does NOT recognize tenancy by the entirety. Married couples who wish to hold property with survivorship rights use joint tenancy or community property with right of survivorship.

D. Rights and Obligations of Co-Tenants

• Possession: Each co-tenant has the right to possess the entire property. One co-tenant cannot exclude another (ouster).
• Rents from Third Parties: A co-tenant who leases to a third party must account to other co-tenants for their proportional share of rental income.
• Ouster: If one co-tenant excludes another, the ousted co-tenant may recover their share of fair rental value.
• Operating Expenses: Co-tenants share taxes, mortgage payments, and necessary repairs in proportion to their ownership interests. A co-tenant who pays more than their share has a right to contribution.
• Improvements: No right to contribution for improvements, but the improving co-tenant receives credit at partition.
• Partition: Any co-tenant may seek judicial partition at any time (either in kind or by sale).

IV. Landlord-Tenant Law

A. Landlord's Duties

1. Duty to Deliver Possession

• English Rule (majority): Landlord must deliver actual possession at the start of the lease. If a holdover tenant is still on the premises, the landlord has breached.
• American Rule (minority): Landlord need only deliver legal possession (the right to possess). Tenant must oust any holdover tenant themselves.

2. Implied Warranty of Habitability (IWH)

Tenant's Remedies for Breach of IWH:

• Move out and terminate the lease (constructive eviction theory).
• Repair and deduct: Tenant makes repairs and deducts the cost from rent.
• Reduce rent / withhold rent: Tenant reduces rent to the fair rental value given the defective condition, or withholds rent entirely and raises IWH as a defense to an eviction action.
• Sue for damages: Difference between the value as warranted and the value in the defective condition, plus consequential damages.

3. Covenant of Quiet Enjoyment

• Implied in every lease: landlord promises that tenant's possession will not be disturbed by the landlord or someone with paramount title.
• Breached by actual eviction (physical removal), partial actual eviction (removing tenant from part of the premises), or constructive eviction.

Constructive Eviction

B. Tenant's Duties

• Pay rent: Tenant must pay the agreed-upon rent. At common law, the duty to pay rent was independent of the landlord's obligations (modern law treats them as dependent covenants in residential leases).
• Avoid waste: Tenant may not commit voluntary waste (damage) or permissive waste (failure to maintain). Tenant has no duty to make structural repairs unless the lease so provides.
• Not use premises for illegal purposes.
• Duty to repair: Under the common law, the tenant bore the duty to repair. Modern residential leases shift this to the landlord (IWH). Commercial leases may assign repair duties to the tenant via a "triple-net" lease.

C. Assignment vs. Sublease

Feature	Assignment	Sublease
Definition	Transfer of the tenant's entire remaining interest in the lease	Transfer of less than the entire remaining term (retaining a reversion)
Privity of Estate with Landlord	Yes — assignee steps into privity of estate with landlord	No — sublessee has no privity of estate with the original landlord
Privity of Contract with Landlord	No (unless assignee expressly assumes the lease)	No
Original Tenant Liability	Remains liable on privity of contract (unless landlord releases / novation)	Remains liable on privity of contract and privity of estate
Landlord's Consent	If the lease requires consent, the landlord may not unreasonably withhold consent (modern rule and California). A clause prohibiting assignment is strictly construed and does not bar subleasing (and vice versa).

D. Holdover Tenants

• When a tenant remains after the lease expires, the landlord may either: (1) evict the tenant and recover damages, or (2) bind the tenant to a new periodic tenancy on the same terms as the prior lease.
• If the original lease was for a year or more, the holdover creates a year-to-year periodic tenancy (common law); if less than a year, the period matches the rent payment interval.

E. Abandonment

• If a tenant abandons the premises before the lease expires, the landlord may: (1) treat the abandonment as an offer of surrender and accept it (ending tenant liability for future rent); (2) re-let on the tenant's behalf and hold the tenant liable for any deficiency; or (3) in a minority of jurisdictions, leave the premises vacant and sue for the full rent (but the modern trend and California require the landlord to mitigate damages).

F. Retaliatory Eviction

V. Easements

An easement is a non-possessory right to use another's land for a specific purpose.

A. Types of Easements

Type	Description	Transferability
Appurtenant	Benefits the holder in connection with their use of a specific parcel (the "dominant tenement") and burdens the "servient tenement."	Runs with both the dominant and servient parcels automatically. Passes with the land even if not mentioned in the deed (unless BFP without notice cuts it off).
In Gross	Benefits the holder personally, without connection to any particular parcel. There is no dominant tenement.	Commercial easements in gross are transferable (e.g., utility easements). Personal easements in gross (e.g., right to fish) are generally not transferable.

Affirmative vs. Negative: An affirmative easement entitles the holder to do something on the servient land. A negative easement restricts what the servient landowner can do (traditionally limited to light, air, support, and water flow; modern trend adds scenic view). Negative easements can only be created by express grant.

B. Creation of Easements

1. Express Grant or Reservation

• Created by a writing that satisfies the Statute of Frauds (signed by the grantor, describes the easement and the affected land).
• Grant: Landowner conveys an easement to another.
• Reservation: Grantor conveys land but reserves an easement for themselves. At common law, a grantor could only reserve an easement for themselves, not for a third party. California allows reservation in favor of third parties (Willard v. First Church of Christ, Scientist).

2. Easement by Implication (Prior Existing Use)

• Arises when land is divided and, before the division, one part of the land was used for the benefit of the other part in an apparent, continuous, and reasonably necessary manner.
• Requirements: (1) common ownership prior to severance; (2) prior existing use before severance; (3) the use was apparent and continuous; (4) the easement is reasonably necessary for enjoyment of the dominant parcel.

3. Easement by Necessity

• Arises when a parcel is landlocked (no access to a public road) after severance from a commonly owned tract.
• Requirements: (1) common ownership before severance; (2) strict necessity at the time of severance (not mere convenience).
• Lasts only as long as the necessity exists.

4. Easement by Prescription

C. Scope of Easements

• The scope of an easement is determined by the terms of the grant or the conditions that created it.
• The holder may make reasonable changes to accommodate normal development of the dominant tenement, but may not unreasonably surcharge (overburden) the easement.
• The dominant tenement owner may not extend the easement's benefit to other parcels not originally intended to benefit.

D. Termination of Easements

• Release: Easement holder releases the interest in writing to the servient owner.
• Merger: The same person acquires ownership of both the dominant and servient tenements. (If they later re-separate, the easement is not automatically revived.)
• Abandonment: The holder demonstrates by physical action an intent to permanently abandon. Non-use alone is insufficient; there must be affirmative conduct showing intent to abandon.
• Estoppel: Servient owner reasonably relies to their detriment on the easement holder's statement or conduct that the easement will no longer be used.
• Prescription: The servient owner uses the land in a way that interferes with the easement and meets all prescriptive-period elements.
• Necessity Ends: An easement by necessity terminates when the necessity ceases.
• Destruction: Involuntary destruction of the servient tenement (e.g., by natural forces) ends an easement in a structure.
• Condemnation: Government's exercise of eminent domain over the servient tenement extinguishes the easement (with compensation to the easement holder).

VI. Covenants Running with the Land & Equitable Servitudes

A. Real Covenants (Enforceable at Law—Damages)

A real covenant is a written promise regarding land use that runs with the land so that subsequent owners are bound or benefited. The remedy is money damages.

B. Equitable Servitudes (Enforceable in Equity—Injunction)

An equitable servitude is a covenant enforced in equity (by injunction) regardless of whether it meets the technical requirements for a real covenant. No privity of estate is required.

Implied Equitable Servitude / Reciprocal Negative Servitude

• When a developer subdivides land and sells lots with a common scheme (general plan of restrictions), lots sold without express restrictions may still be bound by an implied equitable servitude if the buyer had notice of the scheme (actual, constructive, or inquiry notice).
• Notice can come from the pattern of restrictions in other deeds, recorded declarations, or the physical appearance of the neighborhood.

C. Defenses to Enforcement of Covenants / Servitudes

• Changed conditions: If conditions in the neighborhood have so fundamentally changed that the restriction can no longer achieve its purpose, a court may refuse to enforce it. The change must affect the entire area, not just the parcel in question.
• Unclean hands, laches, estoppel, acquiescence.
• Relative hardship: Enforcement would impose disproportionate hardship compared to the benefit.
• Violation of public policy or law (e.g., racially discriminatory covenants are unconstitutional under the 14th Amendment per Shelley v. Kraemer).

VII. Profits, Licenses, and Fixtures

A. Profits

• A profit (profit à prendre) is the right to enter another's land and remove a resource (timber, minerals, soil, game, fish).
• Subject to the same rules as easements regarding creation, transfer, and termination.
• Can be appurtenant or in gross.

B. Licenses

• A license is a personal, revocable privilege to enter another's land. It is not an interest in land.
• Licenses are generally freely revocable at any time by the licensor.
• Exception—Irrevocable License (License Coupled with an Interest): A license becomes irrevocable when the licensee, in reasonable reliance on the license, makes substantial expenditures or improvements. This is sometimes called a license by estoppel, and it effectively creates an easement.
• Tickets (e.g., movie ticket, concert ticket) are licenses.
• A failed attempt to create an easement (e.g., oral easement failing the Statute of Frauds) results in a revocable license.

C. Fixtures

• A fixture is a chattel (personal property) that has been so affixed to land or a building that it is regarded as part of the real property.
• Test (totality of circumstances):
  • Annexation: How permanently is the item attached?
  • Adaptation: Is the item specially adapted to the property?
  • Intent: Did the annexor intend the item to become part of the realty? (Most important factor.)
  • Agreement: Did the parties agree on fixture status?
• Trade Fixtures: Items installed by a tenant for business purposes may be removed by the tenant before the end of the lease, even if they would otherwise qualify as fixtures. The tenant must repair any damage caused by removal.

VIII. Adverse Possession

Additional Rules

• Tacking: Successive adverse possessors may tack their periods together if there is privity between them (voluntary transfer of possession, such as sale, gift, or devise). No tacking for an ouster or unrelated possessor.
• Disabilities: If the true owner is under a disability at the time the adverse possession begins (e.g., minor, insane, imprisoned), the statute of limitations does not begin until the disability is removed. A disability that arises after the statutory period begins running has no effect.
• Government Land: Adverse possession generally does not run against government-owned land.
• Color of Title: If the adverse possessor enters under an invalid deed or will (color of title), constructive adverse possession may extend to the entire area described in the instrument, not just the area actually possessed.

IX. Conveyancing (Land Sale Transactions)

A. The Land Sale Contract

1. Statute of Frauds

• A contract for the sale of land must be in writing, signed by the party to be charged, and identify the parties, the property, and the price.
• Exceptions:
  • Part Performance: The Statute of Frauds will not bar enforcement if the buyer has done at least two of the following: (1) taken possession, (2) made valuable improvements, (3) paid all or part of the purchase price. (Jurisdictions vary on which combination is required.)
  • Estoppel: Reasonable, detrimental reliance on the oral agreement.

2. Marketable Title

What Makes Title Unmarketable:

• Defects in the chain of title (breaks, adverse possession claims, outstanding interests).
• Encumbrances: Mortgages, liens, easements, covenants, or other restrictions (unless the buyer agreed to take subject to them).
• Zoning violations: An existing violation renders title unmarketable. However, the mere existence of a zoning ordinance does not—only an actual violation does.
• Adverse possession: Title acquired solely by adverse possession may be unmarketable because the seller cannot produce a clean chain of title. The seller can cure this by obtaining a quiet title decree.

3. Equitable Conversion

• Risk of Loss (Majority / Uniform Vendor and Purchaser Risk Act): The risk of loss from casualty (fire, flood) remains with the party in possession. If neither party is in possession, some jurisdictions place risk on the buyer (equitable owner) while the UVPRA places it on the seller until closing or possession is transferred.

4. Duty to Disclose Defects

B. The Deed

1. Requirements for a Valid Deed

• Writing: Must be in writing.
• Grantor Identification: Grantor must be identified and must have legal capacity.
• Grantee: Must be identified (or identifiable) at the time of delivery.
• Legal Description: Property must be described with reasonable certainty (metes and bounds, government survey, or plat map).
• Words of Conveyance: Must include operative words of transfer (e.g., "grant," "convey," "transfer").
• Signature: Must be signed by the grantor. Grantee's signature is not required.
• Delivery: The grantor must deliver the deed with the present intent to transfer. Physical transfer is not required—the test is the grantor's intent. Delivery is presumed if: (1) the deed is handed to the grantee; (2) the deed is recorded; or (3) the deed is acknowledged before a notary. Delivery is rebuttably presumed to NOT have occurred if the grantor retains the deed.

Special Delivery Issues

• Conditional Delivery: A deed delivered directly to the grantee with an oral condition is treated as an absolute delivery—the condition is disregarded (oral conditions cannot be imposed on a delivered deed).
• Delivery to an Escrow Agent: A deed may be delivered to an independent third party (escrow agent) with instructions to deliver to the grantee upon satisfaction of conditions. This is valid. Once conditions are met, the delivery relates back to the date of deposit in escrow.
• Acceptance: Generally presumed when the conveyance is beneficial to the grantee.

2. Types of Deeds

Deed Type	Covenants of Title	Protection
General Warranty Deed	All six covenants of title (present: seisin, right to convey, against encumbrances; future: quiet enjoyment, warranty, further assurances)	Maximum protection; grantor warrants against all defects, including those arising before grantor took title
Special Warranty Deed	Same six covenants, but limited to defects arising during the grantor's ownership	Grantor warrants only against defects created by or through the grantor
Quitclaim Deed	None	No warranties at all; transfers whatever interest the grantor has, if any. Often used between family members or to clear title defects.
Grant Deed (CA)	Implied covenants: (1) grantor has not previously conveyed the same estate; (2) the estate is free from encumbrances made by the grantor	The standard deed in California; provides limited implied warranties under Cal. Civ. Code §1113

C. The Recording System

1. Purpose and Function

The recording system protects subsequent purchasers by providing constructive notice of prior conveyances. Recording is not required for a deed to be valid between the parties, but failure to record leaves the grantee vulnerable to subsequent purchasers.

2. Types of Recording Statutes

Type	Rule	Key Language
Race	First to record wins, regardless of notice.	"No conveyance shall be valid against a subsequent purchaser who first records."
Notice	A subsequent BFP (without notice) prevails over a prior unrecorded interest, even if the BFP does not record first.	"No conveyance shall be valid against a subsequent purchaser without notice."
Race-Notice	A subsequent BFP prevails only if they: (1) had no notice at the time of purchase AND (2) recorded first.	"No conveyance shall be valid against a subsequent purchaser who without notice first records."

3. Types of Notice

• Actual Notice: The purchaser actually knows of the prior interest.
• Constructive (Record) Notice: The prior interest is properly recorded in the chain of title. A purchaser is deemed to know anything in the recorded chain of title.
• Inquiry Notice: Facts known to the purchaser would prompt a reasonable person to investigate further (e.g., someone is in possession of the property; references in a recorded document to an unrecorded instrument).

4. Chain of Title Issues

• Wild Deed: A deed recorded outside the chain of title (e.g., the grantor's deed was never recorded, so a subsequent deed from the grantor appears "wild"). A wild deed does not provide constructive notice.
• Shelter Rule: A person who takes from a BFP is "sheltered" by the BFP's status and is protected even if they themselves had notice or did not pay value. Exception: the original grantor who created the problem cannot use the shelter rule.
• After-Acquired Title (Estoppel by Deed): If a grantor conveys property they do not yet own and later acquires title, the title automatically passes to the grantee (inures to the grantee's benefit).

5. Who Is Protected?

• Recording acts protect bona fide purchasers (BFPs) for value. "Value" means more than nominal consideration (donees, heirs, and devisees are generally not protected).
• Mortgagees who loan money secured by a mortgage are considered purchasers for value and are protected.
• Judgment creditors are generally not protected (not purchasers for value), unless a specific statute protects them.

X. Mortgages

A. Nature and Creation

• A mortgage is a security interest in real property given by the debtor (mortgagor) to the creditor (mortgagee) to secure repayment of a debt.
• Must satisfy the Statute of Frauds (writing, signed by the mortgagor, describes the property and the obligation secured).
• An equitable mortgage may arise when the parties intend a security interest but fail to execute a formal mortgage (e.g., absolute deed given as security). Courts look to the intent of the parties.
• Deed of Trust: California primarily uses a deed of trust rather than a traditional mortgage. Three parties: trustor (borrower), beneficiary (lender), and trustee (holds bare legal title). The deed of trust allows for non-judicial foreclosure through a power of sale.

B. Transfer of Mortgaged Property

• "Subject To" the Mortgage: The buyer takes the property knowing of the mortgage but does not become personally liable. If the buyer fails to pay, the lender can foreclose but cannot obtain a deficiency judgment against the buyer. The original mortgagor remains personally liable.
• "Assuming" the Mortgage: The buyer agrees to assume personal liability for the mortgage debt. Both the original mortgagor and the assuming buyer are personally liable (the original mortgagor becomes a surety).
• Due-on-Sale Clause: Most modern mortgages include a clause requiring full payment if the property is transferred. Federal law (Garn-St. Germain Act) preempts state laws that would restrict enforcement of due-on-sale clauses.

C. Transfer of the Mortgage (by the Lender)

• A mortgage follows the note. Transfer of the promissory note automatically transfers the mortgage.
• A mortgage assigned without the note is a nullity.
• If the note is a negotiable instrument and is transferred to a holder in due course (HDC), the HDC takes free of personal defenses (but not real defenses like fraud in the factum, forgery, or incapacity).

D. Priorities

• Purchase Money Mortgage (PMM): A mortgage given to secure a loan used to purchase the property. A PMM has super-priority over prior liens and claims that attached to the buyer's interest, even if recorded later (in most jurisdictions).
• Subordination Agreement: A senior lender may agree in writing to subordinate its mortgage to a junior lender's mortgage.
• Future Advances: A mortgage securing future advances has priority from the date of recording as to obligatory future advances. For optional future advances, priority may be lost if the lender has notice of an intervening lien.

E. Foreclosure

• Judicial Foreclosure: Court-supervised sale. Available in all states. Results in a deficiency judgment if the sale proceeds are less than the debt (unless anti-deficiency statutes apply).
• Non-Judicial Foreclosure (Power of Sale): Available in states (including California) where the mortgage or deed of trust includes a power of sale clause. Faster and less expensive than judicial foreclosure.
• Effect on Other Interests: Foreclosure eliminates all interests junior to the foreclosing mortgage. Interests senior to the foreclosing mortgage survive the sale and the buyer takes subject to them.
• Distribution of Proceeds: (1) Costs of sale, (2) the foreclosing mortgage, (3) junior interests in order of priority, (4) surplus to the mortgagor.

F. Redemption

Type	When	How
Equity of Redemption	Any time before the foreclosure sale	Mortgagor pays the full outstanding debt (plus interest and costs) to redeem the property. Cannot be waived in the mortgage (clogging the equity of redemption is prohibited).
Statutory Redemption	For a statutory period after the foreclosure sale (varies by state; not all states have this)	Mortgagor (and sometimes junior lienholders) may redeem by paying the foreclosure sale price.

XI. Water Rights and Support Rights

A. Water Rights

1. Riparian Rights (Eastern States)

• Owners of land bordering a watercourse have the right to reasonable use of the water.
• Natural Flow Theory: Each riparian owner is entitled to the natural flow of the stream without material diminution. (Traditional approach.)
• Reasonable Use Theory: Each riparian may use water for any beneficial purpose, provided it does not unreasonably interfere with other riparians' use. (Modern/majority approach.)

2. Prior Appropriation (Western States)

• Water rights are determined by priority of beneficial use ("first in time, first in right").
• The right is not dependent on owning riparian land—it belongs to whoever first diverts and puts the water to beneficial use.

3. Groundwater (Percolating Water)

• Absolute Ownership (English Rule): Landowner may withdraw unlimited groundwater.
• Reasonable Use (American Rule): Landowner may withdraw groundwater for reasonable use on the overlying land. (Majority approach.)
• Correlative Rights (California): Each overlying landowner has a co-equal right to reasonable use of groundwater. In times of shortage, rights are shared proportionally.

4. Surface Water (Runoff)

• Common Enemy Doctrine: Surface water is a "common enemy" and each landowner may deal with it as they wish (dam, channel, divert). Modified versions require reasonable conduct.
• Natural Flow (Civil Law) Rule: Lower land must accept the natural flow of surface water from higher land; upper landowners cannot alter the natural drainage.
• Reasonable Use: Balances the interests of both landowners. (Modern/California approach.)

B. Support Rights

1. Lateral Support

• A landowner has an absolute right to have their land supported in its natural state by adjoining land.
• If a neighbor excavates and the land subsides in its natural state, the excavator is strictly liable.
• If the land subsides because of the weight of buildings, the excavator is liable only if they were negligent (unless the land would have subsided even without the buildings, in which case strict liability applies).

2. Subjacent Support

• The owner of underground rights (e.g., mineral rights) must support the surface above.
• Strict liability for failure to provide subjacent support, including support for existing buildings.

XII. Zoning and Land Use Regulation

• Zoning: Government regulation of land use pursuant to police power. Must be rationally related to a legitimate government interest (health, safety, welfare, morals).
• Non-Conforming Use: A lawful use existing before the zoning change. Generally, the use may continue (grandfathered) but cannot be expanded. It may be eliminated through amortization (a reasonable phase-out period).
• Variance: An individual landowner may seek relief from a zoning regulation by showing: (1) undue hardship (not mere inconvenience or reduced profit) unique to the property, not self-created; (2) the variance will not substantially affect the character of the neighborhood.
• Special Use Permit / Conditional Use Permit: Allows a particular use that is consistent with the zoning plan but requires specific approval (e.g., a church in a residential zone).
• Spot Zoning: Singling out a small parcel for treatment significantly different from surrounding parcels, without sufficient justification. Generally invalid.

XIII. Additional California-Specific Rules

• Abolished Common-Law Doctrines: California has abolished: (1) the destructibility of contingent remainders; (2) the Rule in Shelley's Case; (3) the Doctrine of Worthier Title.
• Community Property Overlay: Property acquired during marriage with community funds is community property, even if titled in one spouse's name alone. Real property purchased during marriage is presumed community property. The interaction between CP rules and joint tenancy/title presumptions is a frequent crossover topic. See the Community Property subject guide for full treatment.
• Tenant Protection Act of 2019 (AB 1482): Imposes statewide rent caps (5% + local CPI or 10%, whichever is lower) and just cause eviction requirements for residential tenancies of 12+ months in buildings 15+ years old. Significant exceptions exist (single-family homes not owned by a REIT or corporation, certain condos, new construction within 15 years).
• Cal. Civ. Code §1102 (Transfer Disclosure Statement): Seller of residential property (1–4 units) must provide a TDS disclosing known material defects.
• Cal. Civ. Code §1710.2 (Stigmatized Properties): A seller or agent is not required to disclose that a death occurred on the property more than 3 years before the offer, or that the property was occupied by a person with HIV/AIDS.
• Cal. Civ. Code §2924–2924k (Non-Judicial Foreclosure): The standard foreclosure method in California is non-judicial through a deed of trust. Requires: (1) Notice of Default, (2) 3-month reinstatement period, (3) Notice of Sale (21 days before sale), (4) trustee's sale. The sale is final (no statutory redemption after non-judicial foreclosure).
• Cal. Civ. Code §1008 (No Implied Dedication): Use of private land by the public does not create an implied dedication to public use unless the owner expressly or impliedly consented. A recorded "no dedication" notice negates any claim of implied dedication.
• Mello-Roos / Proposition 13: Property taxes are limited to 1% of assessed value (at time of purchase), with increases capped at 2% per year. This can affect marketable title analysis where special assessments (Mello-Roos liens) are outstanding.

Common Essay Patterns

Pattern 1: The Land Sale Transaction Gone Wrong

Typical Fact Pattern: A sells property to B under a land sale contract. Issues arise before or after closing: title defects, undisclosed easements, recording problems, a third party claims an interest, a mortgage priority dispute.

Key Issues to Address:

• Statute of Frauds (writing, part performance)
• Marketable title (encumbrances, zoning violations)
• Equitable conversion and risk of loss
• Deed validity (WOLDS), type of deed, covenants of title
• Recording act (race-notice in CA): who qualifies as a BFP?
• Shelter rule, wild deeds, chain of title problems
• Mortgage priority (PMM super-priority)
• CA: Grant deed covenants, Transfer Disclosure Statement, race-notice statute

Pattern 2: Neighbors in Conflict (Easements, Covenants, Land Use)

Typical Fact Pattern: Adjacent property owners dispute over use of land: one claims an easement (by prescription, necessity, or implication), the other asserts a covenant violation, and there may be an adverse possession claim or a zoning issue.

Key Issues to Address:

• Easement creation (PINE: prescription, implication, necessity, express)
• Prescriptive easement elements vs. adverse possession (no exclusivity needed; CA: no tax payment for prescriptive easement)
• Scope and termination of easements (END CRAMP)
• Real covenants vs. equitable servitudes: which elements are met?
• Implied reciprocal servitude (common scheme)
• Defenses: changed conditions, unclean hands, laches
• Zoning: nonconforming use, variance, takings
• CA: 5-year statutory period, no prescriptive rights against public land

Pattern 3: Landlord-Tenant Dispute

Typical Fact Pattern: A tenant complains about conditions in a rental unit, withholds rent, or abandons the premises. The landlord retaliates or seeks to evict. There may be an assignment or sublease complication.

Key Issues to Address:

• Type of tenancy (years, periodic, at will, sufferance)
• Implied warranty of habitability (residential only, cannot be waived)
• Constructive eviction (SING)
• Tenant remedies: repair and deduct, rent withholding, damages
• Assignment vs. sublease: privity of estate vs. privity of contract
• Landlord's duty to mitigate upon abandonment
• Retaliatory eviction
• CA: IWH statute, repair and deduct (up to 1 month, 2x/year), 180-day retaliation presumption, AB 1482 rent caps and just cause, 30/60-day notice termination

Pattern 4: Estates and Future Interests / RAP

Typical Fact Pattern: A will or trust creates a series of estates and future interests in land. You must classify each interest, determine whether RAP applies, and analyze who takes the property when certain events occur or fail to occur.

Key Issues to Address:

• Classify each present estate (fee simple, defeasible fee, life estate)
• Classify each future interest (reversion, remainder, executory interest)
• Distinguish vested vs. contingent remainders
• Apply RAP to contingent remainders and executory interests
• Watch for classic RAP traps: unborn widow, fertile octogenarian, slothful executor
• Class gifts: all-or-nothing rule, rule of convenience
• CA: USRAP 90-year wait-and-see, cy pres reformation, abolished destructibility/Shelley's Case/Worthier Title, no fertility presumption after 65

Pattern 5: Concurrent Ownership and Mortgage Foreclosure

Typical Fact Pattern: Co-owners (joint tenants or tenants in common) disagree about the property. One co-owner mortgages their interest or sells to a third party. Issues of severance, partition, and mortgage foreclosure priority arise.

Key Issues to Address:

• Type of concurrent estate (joint tenancy vs. tenancy in common)
• Four unities (T-TIP) for joint tenancy
• Severance by conveyance, mortgage (lien theory vs. title theory), or lease
• Partition: in kind vs. by sale
• Rights between co-tenants: contribution for taxes/mortgage, accounting for rents, ouster
• Mortgage: creation, transfer, priority (recording acts), foreclosure
• CA: No straw person needed, mortgage does not sever (lien theory), lease does not sever (Tenhet), anti-deficiency protections, non-judicial foreclosure procedures, community property overlay

Issue-Spotting Checklist

• Estates: What present estate does the holder have? Is it defeasible? Has a triggering condition occurred?
• Future Interests: Who holds the future interest—grantor or third party? Is it vested or contingent? Does RAP apply?
• Concurrent Ownership: Is it joint tenancy or tenancy in common? Has the joint tenancy been severed? Is there an ouster or right to contribution?
• Landlord-Tenant: What type of tenancy? Has the landlord breached the IWH or covenant of quiet enjoyment? Is there an assignment or sublease? Has the tenant abandoned?
• Easements: Does an easement exist? How was it created (PINE)? Has the scope been exceeded? Has it been terminated (END CRAMP)?
• Covenants/Servitudes: Is it a real covenant or equitable servitude? Do the elements for running with the land exist? Is there a common-scheme/implied servitude? Any defenses?
• Adverse Possession: Are all OCEAN elements satisfied for the statutory period? In CA, were taxes paid?
• Conveyancing: Is the contract enforceable (SOF/part performance)? Is title marketable? Is the deed valid (WOLDS)? Was it properly delivered?
• Recording: Which type of statute applies? Who qualifies as a BFP? Did they record first? Is there a chain-of-title problem?
• Mortgages: What is the priority? Is there a PMM? What foreclosure method applies? Are there anti-deficiency protections?
• Water/Support: What water rights doctrine applies? Is there a lateral or subjacent support issue?
• Zoning/Takings: Is there a nonconforming use? A variance? Has a regulatory taking occurred?
• CA Crossover: Community property implications? Abolished common-law doctrines? Specific statutory protections?

Exam Tips

Mnemonics Summary

Mnemonic	Stands For	Topic
OCEAN	Open & notorious, Continuous, Exclusive, Actual, Non-permissive	Adverse Possession elements
T-TIP	Time, Title, Interest, Possession	Four unities for Joint Tenancy
SING	Substantial interference, It's landlord's fault, Notice given, Goodbye (vacate)	Constructive Eviction
PINE	Prescription, Implication, Necessity, Express	Easement Creation methods
END CRAMP	Estoppel, Necessity ends, Destruction, Condemnation, Release, Abandonment, Merger, Prescription	Easement Termination methods
WOLDS	Writing, Of a grantor (capacity), Legal description, Delivery, Signed	Valid Deed requirements
WITHIN	Writing, Intent, Touch & concern, Horizontal privity, (Implied: Vertical privity), Notice	Real Covenant—Burden Running

Key Distinctions

Concept A	Concept B	Key Difference
Fee Simple Determinable	Fee Simple Subject to Condition Subsequent	FSD ends automatically; FSSCS requires the grantor to exercise the right of entry. Language matters: "so long as" = FSD; "but if / provided that" = FSSCS.
Vested Remainder	Contingent Remainder	Vested: created in an ascertained person with no condition precedent. Contingent: unascertained person or subject to a condition precedent. RAP applies only to contingent remainders.
Remainder	Executory Interest	A remainder follows the natural expiration of the prior estate (patient). An executory interest divests (cuts short) a prior interest (impatient).
Joint Tenancy	Tenancy in Common	JT has right of survivorship and requires four unities. TIC has no survivorship right and requires only unity of possession. TIC is the default.
Assignment	Sublease	Assignment = entire remaining term transferred (assignee in privity of estate with landlord). Sublease = less than the entire term (sublessee NOT in privity with landlord).
Real Covenant	Equitable Servitude	Real covenant: remedy is damages; requires privity. Equitable servitude: remedy is injunction; no privity required.
Easement	License	Easement is an interest in land (irrevocable, runs with land). License is a personal privilege (revocable, does not run).
Easement by Implication	Easement by Necessity	Implication requires prior existing use, apparent and continuous, and reasonable necessity. Necessity requires strict necessity (landlocked) but no prior use. Necessity lasts only while the necessity exists.
Adverse Possession	Prescriptive Easement	AP: must be exclusive, results in ownership. Prescriptive easement: need not be exclusive, results only in a right to use. In CA: AP requires tax payment; prescriptive easement does not.
Mortgage "Subject To"	Mortgage "Assuming"	"Subject to": buyer not personally liable (no deficiency judgment against buyer). "Assuming": buyer becomes personally liable; original mortgagor becomes surety.
Judicial Foreclosure	Non-Judicial Foreclosure	Judicial: court-supervised, deficiency judgment possible (subject to anti-deficiency statutes), statutory redemption available. Non-judicial: power of sale, faster, no deficiency in CA, no statutory redemption in CA.
General Warranty Deed	Grant Deed (CA)	General warranty: six covenants, warrants against all defects. Grant deed: two implied covenants only (no prior conveyance, no encumbrances by grantor). Grant deed is the CA standard.
Common-Law RAP	CA USRAP	Common law: void ab initio if any possibility of remote vesting. CA USRAP: valid if vests within common-law period OR within 90 years (wait and see); court may reform if necessary.