Chapter 13: How to Conquer Real Property on the California Bar Exam

Real Property on the California Bar Exam

While most people find Real Property to be difficult and nuanced, the good news is that California has not tested California distinctions in Real Property essay questions on the California Bar Exam. Real Property also is somewhat predictable in how it is tested.

Here, we tell you how to approach Real Property on the California Bar Exam, including some of the highly tested issues in Real Property questions.

Real Property on the California Bar Exam

1. First, know how Real Property is tested. 

California has virtually always tested general law (rather than California law) on Real Property essay questions.

Real Property is usually tested on its own on the essay portion of the California Bar Exam. However, Real Property has been tested with Torts issues, such as nuisance (even though the California Bar Exam does not label the questions as combined with Torts), Constitutional Law (where takings issues are usually tested), Contracts, and Wills.

Real Property is tested, on average, once a year on the essay portion of the California Bar Exam.

2. Be aware of the highly tested Real Property issues. 

There are some issues that are tested more frequently than others on Real Property essay questions. (We have a nice summary of these in our California Bar Exam One-Sheets, which you can see an overview of at the link here!)

Some of the most highly tested Real Property issues on the essay portion of the California Bar Exam include:

• Joint tenancies and tenancies in common: Frequently tested topics include how a joint tenancy is created, how a joint tenancy is destroyed, and the rights and duties of cotenants. The July 2015 Real Property essay question provides a good overview of these issues.

• Landlord-tenant tenancy types: A tenancy for years is a tenancy for a specific period of time (not necessarily “years”) that expires automatically on the end date. A periodic tenancy has no fixed end date but simply repeats until one party gives valid notice.
• Duties of the landlord and tenant:
  • The tenant must pay rent, and if he does not, the landlord can evict the tenant. Forcible entry and self-help generally are prohibited. The landlord also can sue the tenant for damages, but under majority law, the landlord must try to mitigate his damages.
  • The landlord must not evict the tenant, thereby breaching the covenant for quiet enjoyment. To bring a claim for constructive eviction (1) the tenant must show the landlord has done (or failed to do) something that made the premises uninhabitable or unusable, (2) there must be substantial interference (e.g., the heat not working in the winter), and (3) the tenant must abandon the premises after a reasonable time.

• Assignments and subleases: An assignment is present when a tenant transfers all of his interest in the premises. A sublease is present when a tenant transfers part of his interest.

• Easements: An easement appurtenant benefits the land and is the default type of easement. An express easement must be in writing and be signed by the grantor if it is for over one year.

• • For an easement by prescription, use must be (1) continuous, (2) hostile, (3) actual, (4) open and notorious, and (5) continue for the statutory period.

• Real covenants and equitable servitudes: you should know the difference between a real covenant and an equitable servitude.

3. Be aware of how specific issues are tested. 

We recommend looking at past essays so you can see how to approach the highly tested Real Property issues.

For example, when assignments and subleases are tested, they are frequently tested with a real covenant or equitable servitude issue. Often, the issue is whether a non-assignment or non-sublease clause is enforceable.

If you review past essays (or our California Bar Exam One-Sheets) you will have a good idea of how certain topics are tested—and which topics tend to be tested together.

4. Learn the distinctions between closely related topics. 

Students often struggle with the distinctions between closely related Real Property topics. For example, it is important to be able to articulate the difference between an assignment and a sublease, and between a real covenant and an equitable servitude.

Some Real Property distinctions to be aware of:

• Joint tenants vs. tenants in common
• Partitioning vs. severing a joint tenancy
• Tenancy for years vs. periodic tenancy
• The implied warranty of habitability vs. the covenant of quiet enjoyment
• Assignments vs. subleases
• Real covenants vs. equitable servitudes

These topics are highly tested, so make sure to review them before the exam!

5. Practice! 

The best way to get good at Real Property essay questions is to practice writing answers to essay questions. This will help you become acquainted with how Real Property is tested and help you to master the highly tested issues.

Here are a few essay questions with student answers that we recommend you practice to get exposed to some highly tested topics in Real Property essay questions:

• February 2021 Real Property essay: this essay covers easements, real covenants, and equitable servitudes (see essay question #5 on the exam).
• October 2020 Real Property essay: this essay covers fee simple absolutes, joint tenancies, adverse possession, sharing rent received from tenants, and paying taxes (see essay question #3 on the exam).
• February 2019 Real Property essay: this essay covers a tenancy for years, effect of tenant’s failure to pay rent, the covenant of quiet enjoyment, breach of the implied warranty of habitability, surrender, waiver, and landlord’s duty to make repairs (see essay question #3 on the exam).
• February 2018 Real Property essay: this essay covers nuisance, trespass, easements, and takings (see essay question #3 on the exam).

Good luck studying for the California Bar Exam!

Go to the next topic, Chapter 14: Remedies.

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