Property Ownership and Land Use Controls
Property ownership is where California real estate law begins: what a person actually owns, how they hold title, and what limits ride along with the land. This chapter covers the bundle of rights, the estates that measure how long ownership lasts, the ways two or more people share title, and the encumbrances — liens, easements, and restrictions — that burden real property. California's community-property system and its five-year adverse-possession rule are distinctly Californian and heavily tested, so watch for the ways this state departs from general common law.
Estates in Land
Ownership of real property is best understood as a "bundle of rights" — the rights to possess, use, enjoy, exclude others, and dispose of the land. An estate describes the degree, quantity, and duration of a person's interest in that bundle. California law divides estates into two broad families: freehold estates, which carry ownership of indefinite duration, and less-than-freehold (leasehold) estates, which grant possession for a stated time without ownership of the underlying fee. The largest freehold is the fee simple absolute. It is the most complete ownership the law recognizes: potentially perpetual, freely transferable during life or at death, and inheritable by the owner's heirs. Under the California Civil Code, a grant is presumed to convey a fee simple unless the deed clearly states that a lesser estate is intended, so ambiguous language is read in favor of the grantee receiving the largest estate. A defeasible fee is a variant that can be lost if a stated condition occurs or fails. A life estate is a freehold measured by someone's lifetime rather than by a fixed term. The life tenant may use and profit from the property but may not commit waste or convey a greater interest than they hold. When the measuring life ends, the property passes either to a named remainderman or reverts to the original grantor, depending on how the estate was created. Less-than-freehold estates give possession without ownership of the freehold. The estate for years runs for a definite, fixed term — say a two-year lease — and ends automatically without notice. A periodic tenancy, such as month-to-month, renews automatically until either party gives proper statutory notice. An estate at will continues at the mutual pleasure of the parties, and an estate at sufferance describes a holdover tenant who stays after a lease ends without permission. Distinguishing these estates matters because each carries different notice and termination rules under California landlord-tenant law.
Forms of Co-Ownership
When two or more people hold title together, the form of co-ownership determines how the shares may be transferred, what happens at death, and how creditors reach the property. California recognizes several concurrent estates, and their differences are a favorite exam theme. Joint tenancy carries the right of survivorship: when one joint tenant dies, that share passes automatically to the surviving joint tenants, bypassing probate, and does not go to the deceased owner's heirs. To create a valid joint tenancy, California requires the four unities of time, title, interest, and possession — the owners must take equal interests, in the same deed, at the same time, with equal rights to possess the whole. If any unity is broken (for example, one owner sells a share), that share converts to a tenancy in common. Tenancy in common is the default form of co-ownership. Co-tenants may hold unequal shares, acquire them at different times, and transfer them freely. There is no survivorship: at death, a tenant-in-common share passes to that owner's heirs or devisees. Community property is central to California, a community-property state. Property acquired by either spouse during marriage, other than by gift, inheritance, or devise, is presumed to be community property owned equally by both spouses; each spouse may will away only their one-half interest. Separate property is what a spouse owned before marriage or received by gift or inheritance. California also allows community property with right of survivorship, which combines equal community ownership with automatic survivorship and can provide a favorable full step-up in tax basis on the first spouse's death — buyers should verify current tax treatment with a qualified advisor. Ownership in severalty means title is held by one individual or a single entity alone, "severed" from all others. Recognizing whether a fact pattern describes severalty, joint tenancy, tenancy in common, or community property tells you immediately how the interest transfers at death.
Encumbrances and Liens
An encumbrance is any claim, right, or interest held by someone other than the owner that burdens the title or limits use of the property. Encumbrances fall into two groups. Money encumbrances — liens — secure the payment of a debt. Non-money encumbrances, such as easements, deed restrictions, and encroachments, affect the physical use or condition of the land but do not secure a debt. The exam tests the relationship carefully: every lien is an encumbrance, but not every encumbrance is a lien. Liens are further divided into voluntary and involuntary, and into specific and general. A voluntary lien is created by the owner's own act, chiefly the deed of trust given to secure a mortgage loan. An involuntary lien is imposed by law without the owner's consent. Liens are also specific (attached to one identified property, such as a mechanic's lien or a property-tax lien) or general (attached to all of a debtor's property, such as a judgment lien or a federal tax lien). The mechanic's lien is a specific, involuntary lien available under the California Civil Code to contractors, subcontractors, laborers, and material suppliers who improve real property and are not paid. To be enforceable it must be recorded and then foreclosed within strict statutory time limits — always verify the current deadlines, which are short. A preliminary notice is generally a prerequisite for many claimants. Property taxes and special assessments create priority liens that generally outrank most private liens regardless of recording date. The homestead exemption, under the California Code of Civil Procedure, shields a portion of a homeowner's equity in a principal residence from most unsecured judgment creditors; the protected amount is adjusted periodically, so verify the current figure. The homestead does not defeat voluntary lienholders (the lender you signed with) or tax liens. Understanding priority — which lien is paid first in a forced sale — is essential for California salespersons.
Easements and Encroachments
An easement is a non-possessory right to use another person's land for a specific purpose — a driveway, a utility line, a shared path. Because it is a use right rather than an ownership right, an easement is an encumbrance on the burdened parcel but not a lien. California law recognizes several kinds, and the distinctions are commonly tested. An easement appurtenant involves two parcels: the dominant tenement, which benefits from the easement, and the servient tenement, which is burdened by it. Because it attaches to the land, an easement appurtenant "runs with the land" — it transfers automatically to new owners of the dominant parcel even if the deed does not mention it. An easement in gross, by contrast, benefits a person or company with no dominant parcel; the classic example is a utility company's right to run power lines across many properties. Easements can be created several ways: by express grant or reservation in a deed, by necessity (as when a landlocked parcel needs access), by implication, or by prescription. An easement by prescription arises when someone uses another's land in a manner that is open, notorious, continuous, and hostile (without permission) for the statutory period. Prescription resembles adverse possession but grants only a use right, not ownership, and does not require paying the owner's property taxes. An encroachment is different in kind: it is an unauthorized physical intrusion of a structure — a fence, roof overhang, or driveway — onto a neighbor's land. An encroachment is a trespass that can cloud title, reduce marketability, and, if left unchallenged long enough, ripen into a prescriptive easement. A survey is the standard tool for detecting encroachments before a sale. Salespersons should flag any apparent boundary intrusion and recommend a survey and legal advice, because an undisclosed encroachment can derail a closing or expose the parties to later litigation.
Private and Public Land Use Controls
Land use is limited by two different sources of authority: private restrictions imposed by owners and developers, and public controls imposed by government. Salespersons must recognize which is which, because they are enforced differently and by different parties. Private controls are chiefly deed restrictions and CC&Rs — covenants, conditions, and restrictions. A developer records CC&Rs against an entire subdivision so that every lot buyer takes title subject to uniform rules on building size, setbacks, architecture, and use. CC&Rs run with the land and are enforced by the homeowners association or by other lot owners, typically through an injunction. When a private CC&R and a public zoning rule conflict, the more restrictive of the two generally governs. Note that private restrictions based on race or other protected classes are void and unenforceable under fair-housing law. Public controls flow from the government's police power — the authority to regulate for public health, safety, and welfare. Zoning ordinances, adopted under the California Government Code, separate land into residential, commercial, industrial, and agricultural districts and regulate density, height, and use. A property owner who wants relief may seek a variance (permission to deviate because of hardship) or a conditional-use permit. Nonconforming use protects a use that was lawful before a zoning change. Other public controls include the general plan, subdivision regulation under the Subdivision Map Act and the Subdivided Lands Law, building codes, and the government's power of eminent domain to take private property for public use with just compensation (Subdivision Map Act: Cal. Gov. Code § 66410 et seq.; checked 2026-09-09). A distinct doctrine is adverse possession. In California, a claimant may acquire title to another's land by occupying it in a way that is open, notorious, hostile, exclusive, and continuous for five years — and, critically, by paying the property taxes on the parcel during that entire five-year period. The tax-payment requirement is unique and heavily tested; without it, no California adverse-possession claim succeeds.
Last updated: September 2026
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