Chapter 22 - § 22.4 • OTHER REMEDIES AT LAW OR IN EQUITY; CUMULATIVE REMEDIES

• Jurisdiction: Colorado

§ 22.4 • OTHER REMEDIES AT LAW OR IN EQUITY; CUMULATIVE REMEDIES

A lease will typically state something like, "The remedies contained in this lease are cumulative, and exercise of any remedy by Landlord under this lease shall not prevent the concurrent or subsequent exercise of any other remedy under this lease or available at law or in equity." The point of this clause is twofold: (1) to state that the landlord is not limited to one course of action in the exercise of its remedies; and (2) to make clear that the remedies stated in the lease are not an exhaustive list. If the law provides additional remedies under the circumstances, the landlord may avail itself of them.

§ 22.4.1—At Law or in Equity

The phrase "at law or in equity" recognizes that there once were — and in some states there still are — two types of courts. Courts of law used to be limited to rendering justice strictly based on the law — the common law as established in cases that had precedential value. Courts of equity, on the other hand, could fashion remedies to "do equity," that is, treat the litigants fairly, and the judges had more discretion. In Colorado, courts sit as both courts of law and courts of equity; the distinction between law and equity is largely historical. There are still rules that apply, however, depending on whether the action seeks a legal or an equitable remedy, so the distinction is taught in law school and still affects how cases are decided today.

To give an example of the working of law and equity, one can analyze an action for the collection of rent. At law, the obligation to pay rent is absolute — a covenant, independent of any obligation of the landlord to the tenant. In equity, however, the tenant is able to claim defenses to the payment of rent, such as mistakes (e.g., the landlord and the tenant were wrong about the zoning), fraud (e.g., the landlord lied), illegality (e.g., the lease was to run a crack house), failure of consideration (e.g., the landlord does not own the premises), laches (e.g., the landlord waited too long), waiver (e.g., the landlord did something to excuse the tenant from paying rent), estoppel (e.g., the landlord stated that the tenant did not need to pay rent, so it should not be entitled to collect the rent), and unclean...