Subject outline

Real Property

9 core rule statements and a 233-line detailed rule bank, organized the way the California Bar tests them.

• Adverse Possession

  Adverse possession transfers title when possession satisfies every statutory element continuously for the limitations period.

  Elements / Factors

  1. 1Actual possession.
  2. 2Open and notorious.
  3. 3Hostile under claim of right.
  4. 4Exclusive.
  5. 5Continuous for statutory period.

  Exceptions / Limitations

  • •Permission defeats hostility. Tacking requires privity. Disabilities generally must exist when possession begins.

  California distinction

  • California requires continuous possession for five years and timely payment of all assessed property taxes during that period.

• Land Sale Contract

  A land-sale contract requires mutual assent, consideration, definite property and price terms, and compliance with the Statute of Frauds.

  Elements / Factors

  1. 1Writing signed by party to be charged.
  2. 2Identification of parties.
  3. 3Description of property.
  4. 4Price or method to determine it.
  5. 5Essential terms.

  Exceptions / Limitations

  • •Part performance may support equitable enforcement where acts unequivocally refer to the agreement.
  • •Marketable title is implied unless contract provides otherwise.

• Deed

  A deed transfers legal title when lawfully executed and delivered with present intent that it operate.

  Elements / Factors

  1. 1Identifiable grantor and grantee.
  2. 2Adequate property description.
  3. 3Words of present conveyance.
  4. 4Grantor signature.
  5. 5Delivery with present intent.
  6. 6Acceptance, usually presumed if beneficial.

  Exceptions / Limitations

  • •Recording is not required between parties but affects later purchasers.
  • •A deed delivered subject to an oral condition directly to grantee may be absolute; escrow delivery can preserve conditions.

  California distinction

  • California recognizes grant deeds and quitclaim deeds; a grant deed carries statutory implied covenants against prior conveyance and encumbrances by the grantor.

• Recording Acts

  A recording act determines priority between competing claimants to the same property.

  Elements / Factors

  1. 1Identify statute: race, notice, or race-notice.
  2. 2Later purchaser gave value.
  3. 3Later purchaser lacked actual, record, and inquiry notice when required.
  4. 4Later purchaser recorded first when required.
  5. 5Instrument falls within statute and chain of title.

  Exceptions / Limitations

  • •Shelter rule protects transferee of a protected purchaser.
  • •Wild deeds ordinarily do not give record notice.
  • •Judgment creditors and donees may receive different treatment.

  California distinction

  • California is a race-notice jurisdiction: a subsequent purchaser or mortgagee for value who takes without notice must record first.

• Mortgage and Foreclosure

  A mortgage or deed of trust secures an obligation with real property. Default permits foreclosure according to priority and statutory procedure.

  Elements / Factors

  1. 1Valid debt.
  2. 2Security instrument.
  3. 3Default.
  4. 4Proper notice and foreclosure method.
  5. 5Distribution by priority.

  Exceptions / Limitations

  • •Purchase-money mortgages receive special priority.
  • •Foreclosure terminates junior interests properly joined or noticed but not senior interests.
  • •Debtor may have equitable or statutory redemption rights.

  California distinction

  • California primarily uses deeds of trust and nonjudicial foreclosure. Anti-deficiency and one-action rules can bar or limit recovery, especially for qualifying purchase-money obligations.

• Easement Creation

  An easement may arise by express grant or reservation, implication, necessity, prescription, or estoppel.

  Elements / Factors

  1. 1Express: writing satisfying Statute of Frauds.
  2. 2Implication: prior common ownership, apparent and continuous use, and reasonable necessity.
  3. 3Necessity: severance of common ownership creating landlocked parcel and strict or reasonable necessity.
  4. 4Prescription: adverse-use elements for statutory period.

  Exceptions / Limitations

  • •An easement in gross may be transferable depending on commercial or personal nature.
  • •Scope is determined by terms and reasonable foreseeable use.

  California distinction

  • California prescriptive easements generally require five years of open, notorious, continuous, and adverse use; payment of taxes ordinarily is not required for an easement.

• Real Covenant

  A real covenant is a written promise concerning land enforceable for damages against successors when running requirements are satisfied.

  Elements / Factors

  1. 1Writing.
  2. 2Intent to bind successors.
  3. 3Touch and concern or modern relation to land.
  4. 4Notice for burden.
  5. 5Horizontal and vertical privity for burden under traditional law; vertical privity for benefit.

  Exceptions / Limitations

  • •Equitable servitude may enforce by injunction without horizontal privity.
  • •Common-scheme reciprocal restrictions can arise by implication.

• Landlord-Tenant Duties

  A lease creates a possessory estate and contractual obligations. Landlord and tenant duties depend on lease type and governing law.

  Elements / Factors

  1. 1Tenant duty to pay rent and avoid waste.
  2. 2Landlord duty to deliver possession under applicable rule.
  3. 3Implied covenant of quiet enjoyment.
  4. 4Residential implied warranty of habitability.
  5. 5Duties concerning repairs, assignments, and mitigation.

  Exceptions / Limitations

  • •Constructive eviction requires substantial interference, notice and failure to cure, and tenant vacating within reasonable time.
  • •Retaliatory eviction and discrimination are prohibited.

  California distinction

  • California residential landlords owe statutory habitability duties, must follow unlawful-detainer procedures, and generally must mitigate damages after abandonment.

• Fixtures

  A fixture is personal property so attached to realty that it is treated as part of the land.

  Elements / Factors

  1. 1Annexation.
  2. 2Adaptation to use of realty.
  3. 3Objective intent to make permanent, inferred from nature, relationship, and circumstances.

  Exceptions / Limitations

  • •A tenant may remove qualifying trade fixtures before lease ends if removal does not cause substantial damage.
  • •Agreement controls between parties but may not bind protected third parties without notice.