How to Conquer Real Property on the California Bar Exam
Here, we tell you how to conquer 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 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.
Occasionally you will see a crossover subject. For example, Real Property sometimes tests claims for nuisance (which most students learn in Torts), as it did in February 2018. (Note: these are not labeled as crossover questions by the California Bar, even though they arguably are crossover questions.) Real Property also has been combined with Constitutional Law (where generally takings are tested), Contracts, and Wills.
Real Property is tested, on average, once a year on the California essays.
2. Be aware of the highly tested Real Property issues.
There are some issues that are tested more than others in Real Property 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 “favorite” California Bar Exam issues in Real Property bar exam questions include:
- Joint tenancies and tenancies in common (know how to create a joint tenancy, how to destroy it, and the rights and duties of cotenants). You can review the July 2015 essay question if you are looking for an overview of this.
- The law of landlord-tenant. Know the differences between the kinds of tenancies (e.g., a tenancy for years vs. periodic tenancies). A tenancy for a specific period of time (not necessarily “years”). It expires automatically on the end date. A periodic tenancy has no fixed end date. It simply repeats until one party gives valid notice.
- Be aware of the duties of the landlord and tenant. Two concepts have been tested a few times:
- 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, must try to mitigate damages.
- The landlord must not evict the tenant, thereby breaching the covenant for quiet enjoyment. The doctrine of constructive eviction is frequently tested. In order to bring a claim for constructive eviction, the tenant must show the landlord has done (or failed to do) something that made the premises uninhabitable or unusable, the tenant must give notice to the landlord, and it 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 land. A sublease is present when a tenant transfers part of his interest.
- Real covenants and equitable servitudes
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. Further, oftentimes the issue is whether a nonassignment or nonsublease 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.
One issue we see students have with Real Property questions is that they do not appreciate the distinctions between closely related topics. For example, some students can’t really articulate the difference between an assignment and a sublease, or a real covenant and an equitable servitude.
Some Real Property distinctions you should be aware of are the following:
- Joint tenants vs. tenants in common
- Partition vs. severing a joint tenancy
- Tenancy for years vs. periodic tenancy
- The implied warranty of habitability vs. the covenant for quiet enjoyment
- Assignments vs. subleases
- Real covenants vs. equitable servitudes
- Preexisting uses in zoning vs. variances
Since these topics are highly tested, you should be aware of the distinctions between these concepts. If you struggle to articulate the differences, make sure to review them before the exam.
The best way to get good at Real Property questions is to practice essays. This will help you become acquainted with how Real Property is tested (including crossover essays). And it will help you 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:
- July 2015 essay question and student answer (see essay question #2 on the exam)
- February 2015 essay question and student answer (see essay question #2 on the exam)
Good luck studying for the California Bar Exam!
Go to the next topic, Chapter 14: Remedies.
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