David Allen
Partner, Jaburg Wilk


On all of the television court shows, one theme that is pervasive is that the judge, in issuing his or her ruling, attempts to fashion as result that is “fair” to the parties.  But as anyone who has first-hand experience, either as an attorney or as a party, with “real life” lawsuits, knows well, it is all too often true that the concept of “fairness” plays no part in the judgment rendered by the judge or jury. There is one legal claim, however, that can be asserted in certain circumstances, which is totally founded on the concept of fairness.  That claim is known as “unjust enrichment.”

In order be able to prevail on a claim of unjust enrichment, a plaintiff must prove each of the following five elements: (1) an enrichment, (2) an impoverishment, (3) a connection between the enrichment and the impoverishment, (4) the absence of justification for the enrichment and impoverishment, and (5) the absence of a remedy provided by law. Say, for example, that Jim is a painter who enters into a written contract with Tom to paint Tom’s house located at 1357 Main Street. On the day that the painting is to occur, Tom sends a text to his painting crew foreman Pete to go paint the house, which Jim mistakenly identifies as being located at 1537 Main Street.  Upon arriving at that location, Pete knocks on the door, but there is no answer. Pete and his crew then commence to paint the house. After thirty minutes later, George, the owner of the house, arrives home, and is pleasantly surprised to see a painting crew painting his house, which was long overdue to be repainted. George then enters his house, and does not talk to Pete until Pete knocks on his door again at the end of the day to collect the contract price for the paint job. At that time, George informs Pete that he is not going to pay, as he had never entered into any agreement with Jim to have his house painted.

Under these circumstances, Jim cannot sue George based upon any contractual theory, as there never was a contractual relationship between Jim and George. But can Jim sue George for “unjust enrichment” and prevail?  Looking at the five elements, clearly George was “enriched,” as his house was painted, Jim was “impoverished,” because he paid both for the time spent by Pete and his crew and for the paint, and there is a “connection between the enrichment and impoverishment.” And while George may have had a “justification” had he not stood idly by without saying anything to Pete once he knew that his house was being mistakenly painted, by doing what he did, any possible “justification” was lost. Finally, in that there is no contractual relationship, there is an “absence of a remedy provided by law.” Having met all of the five elements, Jim’s case against George for unjust enrichment is appropriate, and Jim will be able to recover against George for the reasonable value of the painting of George’s house.


David Allen is a real estate attorney at the Phoenix law firm of Jaburg Wilk. David has been representing clients in both transactional and litigation real estate and business related matters for over 30 years. He is licensed as an attorney in both Arizona and California, and is also a licensed Arizona real estate broker. David can be reached at dla@jaburgwilk. com or at 602-248-1082.