July 2024 · ORIGINAL INSTRUCTIONAL EXAMPLE

Essay 2: Real Property
Sample Answer & Question Pointers

July 2024 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 3

QUESTION 2 Olivia owned Greenacre in fee simple. Greenacre consisted of two unimproved adjoining lots, Lot A and Lot B. A dirt road led from Lot A across Lot B to a public highway. Sixty years2 ago, Olivia conveyed Lot B to Barry as a gift, subject to the following clause: “If at any time, Barry, his heirs, successors or assigns shall use the premises for any purpose other than as a personal residence, said Lot B shall immediately vest1 in fee simple in Zach or his surviving descendants.” Shortly after receiving title, Barry began living in a cottage he built on Lot B. At the time of the conveyance of Lot B, Zach had not yet had any children. Zach has since died, and his granddaughter, Darla, is now his only surviving descendant. Thirty years ago, Olivia died. Her son, Simon, inherited Lot A. He built a house on Lot A one year later. Through the years, Simon regularly used the dirt road across Barry’s adjacent Lot B to get to and from his house and the public highway because there was no other access3. Four months ago, Barry sold Lot B to Developer for $1,000,000. Developer demolished the cottage, began constructing an office building on the lot, and began closing off access to the dirt road from Simon’s house. All conveyances were properly recorded immediately after execution and delivery. 1. What property interest, if any, does Darla have in Lot B? Discuss. 2. What claim(s) may Simon make to maintain a right of way over Lot B to the public highway? Discuss.

Before you write: issue outline

  1. Identify Barry’s defeasible fee and the third party’s shifting executory interest.
  2. Test the future interest at creation under the common-law perpetuities rule.
  3. Analyze necessity, prior use, and prescription as separate routes to an easement.

1. Darla’s claimed interest in Lot B

The deed provides for automatic transfer to a third party if the land ceases to be used as a personal residence. Ordinarily, Barry would receive a fee simple subject to an executory limitation, and Zach or the specified descendants would hold a shifting executory interest. This is not a right of entry retained by Olivia, and the clause does not merely promise payment for a breach.

The common-law rule against perpetuities applies to the third-party executory interest. At the conveyance, it was possible for Lot B to remain residential for generations and then shift long after every life in being plus twenty-one years. Zach had no children at that time, and the future class of surviving descendants does not furnish a guaranteed timely vesting event. The possibility of remote vesting makes the interest invalid at creation under the common-law rule.

Actual events do not cure that defect. Darla’s present identity as the only surviving descendant and Developer’s recent office construction cannot retroactively validate a future interest that might have vested too remotely when created. The question does not direct application of California’s statutory alternative or an unstated wait-and-see period; a general-law answer should identify its common-law premise rather than silently apply a particular state’s reform.

With the invalid executory limitation severed, Barry held a fee simple absolute and could convey it to Developer. Darla therefore has no enforceable interest under that clause on the common-law analysis. If an applicable saving statute instead validated the interest, the office use would trigger the stated limitation, and the surviving-descendant language would require determining the proper taker. That conditional result is distinct from the primary common-law conclusion.

2. Simon’s access over Lot B

Easement by necessity

An easement by necessity can arise when commonly owned land is severed and a retained or transferred parcel lacks legally sufficient access to a public road. Olivia originally owned both lots. When she gave away Lot B, Lot A was left dependent on the road crossing it. The facts say there is no other access, strongly supporting strict necessity at severance.

The right would have arisen for Olivia’s retained Lot A and passed with that dominant parcel to Simon. His later construction of a house does not create the original severance, but it does not erase a necessity that already existed. The easement lasts while the legally required necessity continues. Developer’s purchase and payment of a substantial price do not automatically terminate an appurtenant access right.

Easement implied from prior use

A separate implied-easement theory requires a sufficiently apparent and continuous prior use under common ownership and the required degree of necessity. The dirt road already connected Lot A to the highway across Lot B. Its physical existence supports apparent prior use, but the record does not detail how Olivia actually used it before the gift. Simon should establish that history. Because this is an implied reservation for retained land, some formulations demand a stronger necessity showing; the stated lack of other access assists him.

Prescription

Simon also regularly used the road for approximately twenty-nine years after building his house. An open, notorious, continuous, and adverse use for the applicable statutory period can establish a prescriptive easement. His visible travel over an existing road supports the first elements and a lengthy period, but no specific statutory period is supplied. Permission would defeat adversity, and a right already held by necessity is not automatically hostile use creating another right by prescription. The exact basis and any permission should therefore be examined.

Enforcement against Developer

The road is an observable use capable of putting a purchaser on inquiry notice, and properly recorded instruments do not mean that every easement must be express in a deed. Simon can seek a declaration of his appurtenant right and an injunction against obstruction. The strongest ground is necessity arising from the original severance, supported alternatively by the prior-use facts and, if its independent requirements are established, prescription. The permissible scope is reasonable access for Lot A; the easement does not confer ownership of all Lot B.

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.