This is the first video in a series covering the mechanics of California real estate law. A new episode will be released each week. Stay tuned!

The English and Spanish influence

Historically, California real estate law has been influenced by two key sources of human conduct:

  • the English legal system, or common law; and
  • the Spanish legal system, or civil law.

The common law of England has been the predominant influence on California real estate law. This legal framework was officially adopted by California soon after obtaining statehood in 1850. [Calif. Civil Code §22.2]

Under the common law, legal disputes are decided on a case-by-case basis before a judge. Even today, the common law is often called “judge-made” law. When similar legal disputes arise, the judges refer back to the logic of earlier decisions to decide current cases. The reliance on an earlier decision to decide a current case is called stare decisis. The earlier case relied on is called precedent.

Similarly, the civil law of Spain had a significant impact on California real estate law. Civil law establishes statutes to settle legal disputes in advance, rather than on a case-by-case basis.

These legal traditions continue to exist today in the form of:

  • statutes, regulations and ordinances; and
  • case law.

The role of the U.S. Constitution

The United States Constitution (U.S. Constitution) is the supreme law of the United States. [United States Constitution, Article VI, clause 2]

All powers which the state and federal governments possess are derived from the U.S. Constitution.

The U.S. Constitution lists and explains the powers of the federal government. All other powers not given to the federal government rest with the individual states or with the people. [U.S. Const., Amend. X]

The form of government in which individual states share powers with a national or central government is called federalism.

Under federalism, the individual states remain independent (sovereign) to regulate any matters within their own borders which are not already controlled by the federal government.

Each state has its own constitution to regulate state matters remaining under their control. A state may provide more constitutional protection than the federal government if it chooses, but it may not provide less.

Separated powers

Both the federal and state governments created under the U.S. Constitution are separated into three branches:

  • the legislative [U.S. Const., Art. I];
  • the executive [U.S. Const., Art. II]; and
  • the judicial. [U.S. Const., Art. III]

The state and federal legislatures enact the codes and statutes which regulate most aspects of real estate interests.

The executive polices the law and establishes regulations to carry out the administration of government as established by the legislature.

The judiciary settles disputes and issues case opinions regarding the application of the law and regulations.

No branch may exercise a power given to another branch.