California Bar Examination Real Property Syllabus

What is marketable title, and what defects render title unmarketable?

Title reasonably free from doubt that a prudent buyer would accept. Defects include defects in the chain of title, encumbrances (mortgages, liens, easements, restrictive covenants), and zoning violations (not mere zoning ordinances). Implied in every land-sale contract; must be marketable at closing.

What is the doctrine of merger in real estate contracts?

At closing, the contract obligations merge into the deed; the contract terms (including marketable title) are extinguished and the buyer can thereafter sue only on the deed's covenants, not the contract.

Explain equitable conversion and who bears the risk of loss before closing.

Once a valid land-sale contract is signed, equity treats the buyer as the owner of the land (real property) and the seller as holding the proceeds (personal property). Under the majority rule, the risk of loss is on the buyer during the executory period, even before taking possession (absent contract or UVPRA provision).

Under equitable conversion, what happens to the interests if the seller dies before closing?

The seller's interest is treated as personal property (right to the purchase money), passing to those who take personalty. The buyer's interest is treated as real property. (The risk-of-loss and devolution consequences both flow from equitable conversion.)

What are the formal requirements for a valid deed?

A deed must be in writing, signed by the grantor, identify the parties, contain words of transfer, and adequately describe the land. Consideration is NOT required for validity. Delivery and acceptance are also required to pass title.

What is the delivery requirement for a deed, and how is intent shown?

Delivery requires the grantor's present intent to make the deed immediately operative to pass title, regardless of physical handover. Manual transfer raises a presumption of delivery; retention by grantor or a condition that title pass at death may defeat it. Acceptance is presumed if the conveyance benefits the grantee.

Compare the three types of deeds and the title protection each gives.

General warranty deed — grantor warrants against all defects, including those arising before grantor owned (six covenants). Special (limited) warranty deed — warrants only against defects arising during grantor's ownership. Quitclaim deed — no covenants of title; conveys only whatever interest the grantor has.

List the six covenants of title in a general warranty deed.

Present covenants (breached, if at all, at delivery): seisin, right to convey, and against encumbrances. Future covenants (breached upon later disturbance): quiet enjoyment, warranty, and further assurances. Present covenants do not run with the land; future covenants do.

What is the purpose of recording acts, and who do they protect?

Recording acts resolve priority disputes between successive grantees of the same land. They protect subsequent bona fide purchasers (and, depending on type, those who record first). They do NOT protect donees, heirs, or devisees (no value given), nor anyone with notice (under notice/race-notice statutes).

Distinguish race, notice, and race-notice recording statutes.

Race — first to record wins, notice irrelevant (rare). Notice — a subsequent BFP without notice prevails over a prior unrecorded interest, whether or not the BFP records first. Race-notice — a subsequent BFP without notice prevails only if they also record first.

What are the three types of notice under recording acts?

Actual notice (real knowledge), constructive/record notice (a properly recorded instrument in the chain of title), and inquiry notice (facts that would prompt a reasonable person to investigate, e.g., someone in possession or a reference in a recorded deed).

What is the shelter rule in recording acts?

A person who takes from a bona fide purchaser protected by the recording act receives the same protected status as the BFP, even if that person otherwise had notice. This lets a BFP freely transfer good title.

Compare the title theory and lien theory of mortgages.

Lien theory (majority) — the mortgagee holds only a lien; the mortgagor retains title and possession, so one joint tenant's mortgage does not sever the joint tenancy. Title theory (minority) — the mortgagee holds legal title until the debt is paid, which can sever a joint tenancy.

Distinguish a mortgagor's equity of redemption from a statutory right of redemption.

Equity of redemption — the mortgagor's right to pay off the debt (plus interest/costs) and reclaim the property any time before the foreclosure sale; cannot be waived in the mortgage ('clogging' prohibited). Statutory right of redemption — in some states, the right to redeem for a set period AFTER the foreclosure sale.

How does foreclosure affect junior and senior interests?

Foreclosure of a mortgage eliminates all junior interests (those recorded after the foreclosing mortgage) but does NOT affect senior interests, which remain on the land. Junior lienholders must be joined; proceeds are distributed by priority, with any surplus to the mortgagor.

What is a purchase-money mortgage (PMM) and its priority?

A PMM is a mortgage given to secure a loan used to buy the property (to the seller or a third-party lender financing the purchase). A PMM has priority over other liens/mortgages against the borrower that arise at or before the purchase, even prior-recorded judgment liens, and (vs. another PMM) seller PMMs beat third-party PMMs.

What is the difference between 'subject to' a mortgage and 'assuming' a mortgage?

If a buyer takes 'subject to' the mortgage, they are not personally liable; the land can still be foreclosed, but the original mortgagor remains liable. If the buyer 'assumes' the mortgage, the buyer becomes primarily liable and the original mortgagor is secondarily liable (surety).

Define an easement and distinguish an easement appurtenant from an easement in gross.

An easement is a nonpossessory right to use another's land. Appurtenant — benefits the holder in use of a specific parcel (dominant tenement); the burden is on the servient tenement; it runs with the land. In gross — benefits a person/entity, not land (e.g., utility lines); no dominant tenement.

List the four ways an easement can be created.

PING: by Prescription (adverse-possession-like use), by Implication (prior use/quasi-easement or necessity), by Necessity (landlocked parcel from a common grantor), and by Grant (express writing satisfying the Statute of Frauds). Also by estoppel/reservation.

What are the elements of an easement by prescription?

Like adverse possession but exclusivity is not required: the use must be Open and notorious, Continuous (for the statutory period), Hostile (without permission), and Adverse. (COAH/OCEAN without exclusivity.) Permission defeats a prescriptive easement.

What are the requirements for an easement by implication from prior existing use?

(1) Land was originally one parcel under common ownership that was later severed; (2) before severance, an apparent, continuous use existed (a quasi-easement); and (3) the use is reasonably necessary for the enjoyment of the dominant parcel.

How are easements terminated?

END CRAMP: by Estoppel, Necessity ending, Destruction of servient land, Condemnation, Release (writing), Abandonment (act showing intent), Merger (unity of title), and Prescription (interference for the statutory period). Mere nonuse alone is insufficient.

What is the difference between a real covenant and an equitable servitude?

A real covenant is a written promise about land enforced at law for money damages; it requires intent, notice, touch and concern, horizontal and vertical privity to run. An equitable servitude is enforced in equity by injunction, requires intent, touch and concern, and notice, but NO privity.

What must be shown for the BURDEN of a real covenant to run with the land?

WITHN: Writing, Intent that it run, Touch and concern the land, Horizontal privity (between original parties, a grantor-grantee/shared-interest relationship), strict Vertical privity (successor takes the entire estate), and Notice. Burden requirements are stricter than the benefit's.

What must be shown for the BENEFIT of a real covenant to run with the land?

Writing, Intent, Touch and concern, and Vertical privity (relaxed — any succeeding possessory estate qualifies). Horizontal privity is NOT required for the benefit to run, and notice is irrelevant for the benefit side.

What is the common scheme (general plan) doctrine for implied equitable servitudes?

A restriction can be enforced against a lot owner even without a writing in that owner's deed if (1) the developer had a common scheme of residential restriction when sales began, and (2) the owner had actual, record, or inquiry notice of the restriction. Allows reciprocal enforcement among subdivision lots.

What are the elements of adverse possession?

COAH: possession that is Continuous (for the statutory period), Open and notorious, Actual (and exclusive), and Hostile (without the owner's permission). Some states add a claim of right or good-faith/color-of-title requirement; payment of taxes is required in some states (e.g., California).

What is tacking in adverse possession, and what is the effect of disabilities?

Tacking lets successive adverse possessors add their periods together if they are in privity (voluntary transfer). Disabilities (minority, insanity, imprisonment) of the true owner at the time the cause of action accrues toll the statute until the disability is removed; disabilities must exist at the start.

How does adverse possession operate against future interests and government land?

Adverse possession does not run against a future interest holder until that interest becomes possessory (the statute runs against the present estate holder only). Adverse possession generally cannot be claimed against government-owned or public land.

What is a nonconforming use in zoning, and can it be eliminated?

A nonconforming use is a use that lawfully existed before a new zoning ordinance made it noncompliant. It generally must be allowed to continue (a vested right), but cannot be expanded or enlarged; it can be eliminated through amortization (over a reasonable period) or if abandoned. Sudden termination may be an unconstitutional taking.

Distinguish a zoning variance from a special use permit, and define a regulatory taking.

A variance allows deviation from zoning requirements upon showing undue hardship and no harm to neighbors. A special use permit allows a use permitted only with administrative approval. A regulatory taking occurs when a regulation denies an owner all economically viable use of land (or otherwise goes 'too far'), requiring just compensation.