February 2019 · ORIGINAL INSTRUCTIONAL EXAMPLE

Essay 3: Real Property
Sample Answer & Question Pointers

February 2019 California Bar Examination · Fact-specific analysis, an issue outline, and pointers on the official question.

By Bar Exam Doctor · Published November 4, 2026

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This is an original, ungraded instructional response. It is not an official State Bar selected answer, a scored student submission, or a claim of attorney review. Use it to compare reasoning and organization after attempting the question. Alternative reasoned analyses may be possible.

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Official source page 4

QUESTION 3 Lois rented a furnished apartment in her building to Tammy, a medical student, for nine months, beginning June 1. Tammy prepaid the first month’s rent. When Tammy arrived at the apartment on June 1, Ralph, the prior tenant1, was still there despite the fact Ralph’s rental term had ended on May 15. Tammy complained to Lois and Lois was able to evict Ralph by June 15. Tammy took possession of the apartment on June 16. The apartment above Tammy’s was occupied by Coco, a member of an up-and-coming band, The Gyrations. The band’s daily rehearsals interfered with Tammy’s studies so much that she complained repeatedly to Lois about the continuing noise. On July 15, The Gyrations were arrested at Coco’s apartment for disturbing the peace. After that Tammy was spared the noise from rehearsals. Beginning July 16, the shower in Tammy’s apartment delivered only cold water. Tammy complained, and Lois promptly hired a plumber to fix the problem. The repair only worked for a week. Tammy was too busy with her studies2 to tell Lois. On August 30, Tammy’s stove in her apartment stopped working. On August 31, Tammy, disgusted with all these events, knocked on Lois’s door, gave the key to Lois, and said, “This place is a zoo; I wouldn’t live here if you paid me!” Lois took the key and said, “Sure, okay3, if that’s how you feel.” Tammy stopped paying rent and never returned to the apartment. Lois commenced a lawsuit against Tammy for breach of her lease and special damages for past due and prospective rent. What arguments may Lois reasonably raise in support of her lawsuit, what counterclaims and defenses may Tammy reasonably assert, and what is the likely outcome? Discuss.

Before you write: issue outline

  1. Separate failure to deliver possession from later interference and habitability defects.
  2. Analyze notice and opportunity to repair for each condition, rather than aggregating cured problems.
  3. Treat Lois’s acceptance of the keys as a possible surrender and distinguish accrued from future rent.

1. The lease and initial possession

The parties agreed to a nine-month residential term beginning June 1. A tenancy for years ends at its fixed expiration without the ordinary notice needed to terminate a periodic tenancy. A lease of less than one year ordinarily does not present the standard one-year statute-of-frauds problem on these facts. Lois can begin with the valid lease and Tammy's promise to pay rent, but her own obligations affect whether and how much she may recover.

The prior tenant's term ended May 15, yet Ralph remained until June 15. Under the majority or English rule, the landlord must deliver actual possession at the start of the new term. Lois failed to do so on June 1. Tammy could elect appropriate termination relief or accept delayed possession with rent abatement and damages for the period of exclusion. By moving in on June 16, she likely affirmed the remaining tenancy rather than retaining an unrestricted right to cancel later solely because the initial delivery was late. She still may seek recovery or credit for the prepaid rent attributable to days she could not possess the apartment and other proved foreseeable loss.

Under the traditional American minority rule, the landlord promises the legal right to possession rather than removal of a wrongful holdover, and the new tenant ordinarily proceeds against the holdover herself. Lois can argue that alternative if it governs. The question does not specify a jurisdiction, so identifying both approaches and the stronger majority result is preferable to treating either as universal. Lois's eventual successful eviction did not retroactively supply the first half-month of occupancy.

2. The band's interference

The covenant of quiet enjoyment protects against substantial interference with the tenant's use by the landlord or circumstances legally attributable to the landlord. Daily rehearsals seriously disrupted Tammy's residential use and studies, and repeated complaints gave Lois actual notice. A landlord with power to control an offending tenant cannot necessarily avoid responsibility by saying that another tenant generated the noise.

Tammy can argue private nuisance and breach of quiet enjoyment if Lois authorized, permitted, or unreasonably failed to address the continuing disturbance within her control. Lois can dispute the extent of her control and argue she did not personally create the noise. The band's arrest for disturbing the peace corroborates that the problem exceeded merely sensitive reactions to normal apartment sounds.

Constructive eviction ordinarily requires substantial interference attributable to the landlord, notice and a reasonable opportunity to remedy, and the tenant's departure within a reasonable time because of the interference. Tammy did not leave while rehearsals continued. The disturbance ended July 15 and did not recur. Remaining until August 31 after the problem was cured makes noise alone a weak basis for constructive eviction from the remaining lease. It does not necessarily eliminate damages or abatement for the earlier period of substantial interference. The answer should distinguish compensation for past interference from the right to abandon months of future obligations.

3. Hot water and the stove

Residential leases ordinarily carry an implied warranty of habitability concerning conditions materially affecting health and safety or basic residential functions. Hot water and a working cooking facility can be essential services. A tenant may have remedies including rent abatement, repair-related relief, damages, or termination for sufficiently serious unremedied breach under the governing law. Those remedies often depend on notice or knowledge and a reasonable opportunity for the landlord to respond.

When hot water failed on July 16, Tammy notified Lois, who promptly hired a plumber. That response supports reasonable care and an attempt to meet the obligation, although a failed repair does not make the continuing condition habitable. The repair worked for a week and then failed again. Tammy never told Lois of the recurrence. Lois can reasonably argue she believed the issue fixed and was denied an opportunity to make another repair. Tammy can argue the original notice and inadequacy of the repair placed responsibility on Lois to ensure a lasting cure. Whether further notice was required depends on actual knowledge, the repair circumstances, and applicable law; her busy studies do not themselves excuse every notice requirement.

The stove failed August 30, only one day before Tammy surrendered the keys. There is no described complaint or chance for Lois to inspect and repair it. That recent defect supports the existence of a habitability problem but is a weak independent justification for immediate abandonment absent an emergency or other basis excusing notice. An answer should not assume a nonworking stove necessarily makes every dwelling entirely uninhabitable overnight.

Taken together, the lack of hot water and stove may substantially impair ordinary residential use. Yet the initial exclusion and noise had ended, Lois responded promptly to the only repair notice, and Tammy did not communicate the later failures before leaving. Habitability-based credits may be possible, but a complete defense to all future rent is less certain than simply reciting the list of defects suggests.

4. Surrender and acceptance

Tammy's delivery of the keys with an unequivocal refusal to remain is an offer to surrender the tenancy. Lois took the keys and responded that it was okay if Tammy felt that way. A landlord's acceptance of surrender can terminate the tenant's future rent obligation even where constructive eviction is not established.

Tammy has a strong argument that Lois's words and conduct accepted the termination by agreement. There was no stated reservation that the keys were taken only to protect the premises while continuing to hold Tammy liable. Lois can counter that accepting keys alone does not invariably accept surrender and that her response merely acknowledged Tammy's departure. Courts examine the whole exchange and subsequent conduct, not the key transfer in isolation. Here the express okay accompanying receipt favors Tammy more than a silent protective receipt would.

If surrender was accepted on August 31, prospective rent after that date is not owed under the terminated lease. Acceptance does not ordinarily erase rent already accrued or Tammy's claims for earlier breaches. The parties still must account for unpaid rent, prepayment credits, and valid abatements. The facts do not specify the rent amount or whether every intervening month's rent was paid, so a numerical award cannot be invented.

5. Damages if surrender was not accepted

If Lois did not accept surrender and Tammy lacked a sufficient termination defense, leaving before the fixed term ended is a breach. Lois may seek rent or contract damages under the jurisdiction's lease-remedy rules. Under the modern majority approach she must take reasonable steps to mitigate by attempting to relet, crediting rent received and avoiding a double recovery. A landlord cannot generally leave a readily rentable apartment empty and automatically collect every remaining payment without considering mitigation. Traditional rules are less demanding, but should be identified as such.

Future rent is not automatically a presently due lump-sum debt absent an applicable acceleration provision or damages rule. Lois must establish the legally recoverable deficiency and any properly supported incidental or consequential loss. Calling damages special does not dispense with causation, foreseeability, reasonable certainty, or mitigation.

The most persuasive outcome is that Tammy receives a credit for the initial inability to occupy under the majority possession rule and may prove additional limited damages or abatements for serious past conditions. Her constructive-eviction defense is weakened by the cure and notice facts. Her best defense to prospective rent is the apparently accepted surrender. If the court rejects that interpretation, Lois may recover an appropriately proved, mitigated remaining loss, reduced by Tammy's valid counterclaims rather than automatically receiving the entire remaining term's rent.

Sources and further comparison

The official question controls its facts and jurisdiction. These responses address the exam scenario; subsequent legal changes and other fact patterns may require a different analysis. The PT uses the supplied fictional Columbia library, which must not be replaced with outside law.