Chapter 55 - § 55.6 • OTHER EQUITABLE REMEDIES

• Jurisdiction: Colorado

§ 55.6 • OTHER EQUITABLE REMEDIES

§ 55.6.1—Equitable Lien

The equitable lien is described as a special form of constructive trust, used to prevent unjust enrichment and to secure an obligation for a monetary payment. Leyden v. Citicorp Indus. Bank, 782 P.2d 6, 9-10 (Colo. 1989) (en banc). It is defined as a right to have a demand satisfied from a particular fund or specific property without having possession of that fund or property, "Equitable Lien," Black's Law Dictionary (11th ed. 2019), and it arises in situations in which a constructive trust is not appropriate, such as cases in which only a security interest in the subject property, and not complete title to such property, is the remedy sought. Leyden, 782 P.2d at 10, n. 8.

For example, an equitable lien is properly asserted when a fiduciary improperly uses property held in a fiduciary capacity to improve the fiduciary's rightfully owned property, Loring and Rounds § 7.2.3.1.4, or when a joint owner makes improvements to jointly owned property that increase the property's value. "Equitable Lien," Black's Law Dictionary (11th ed. 2019). A constructive trust would not be appropriate in such circumstances since property rightfully owned by the fiduciary is at issue.

§ 55.6.2—Implied Contract

Like constructive trusts, contracts implied in fact are a somewhat flexible equitable remedy that can be applied to many situations. Implied contracts are imposed by a court to create a legal obligation in an effort to prevent unjust enrichment. "[T]here is no difference in legal effect between an express contract and a contract implied in fact . . . ." Osband v. United Airlines, Inc., 981 P.2d 616, 621 (Colo. App. 1998).

Generally, an implied contract is created when parties manifest their agreement by conduct rather than words. 1B Colo. Prac., Methods of Practice § 19:4 (7th ed.). Finding the existence of an implied contract requires a plaintiff to prove that at the plaintiff's expense, the defendant received a benefit that under the circumstance would be unjust for the defendant to retain without paying. Salzman v. Bachrach, 996 P.2d 1263, 1265-1266 (Colo. 2000). Damages associated with this cause of action can account for loss of property, but also savings from expenses/loss or other advantages conferred on a defendant. Lindsay K. Warren, David W. Kirch & David S. Anderson, "Claims Against an Estate for Care Rendered to a Decedent," 33 Colo. Law. 93 (Nov. 2004).

Implied contracts often arise in the probate...