Question: A few months ago, my now-ex-girlfriend and I moved into an apartment together. She was very eager to move, so she paid the $800 security deposit herself. There was never any agreement that I would pay her back, either orally or in writing. For months, we shared half the rent respectively. Now that we are no longer together or under the same roof, she has been getting on my case to pay her back this $800. There’s nothing that says that I actually owe her a dime. Could she sue me in small claims court, and if so, is there any chance she could win?

Regards,
Steve

Answer: People ask me a lot, “Can I be sued?” I don’t need to know anything about the underlying dispute to say yes, you can always be sued. There is no requirement that someone prove they have a legitimate claim before they file case. That wouldn’t make sense, would it? There are a couple of barriers to filing a lawsuit, but they have nothing to do with the merits. Those get sorted out after filing. And small claims court is specifically designed to lower those barriers even more than usual. So yes, your ex can file a case. Heck, I could sue your for that $800.

A more difficult question to answer is, can she win? Litigation is too unpredictable to say one way or the other, but don’t be so sure that no contract was entered into. You don’t necessarily need a writing to create a contract. Depending on exactly how this went down, your acquiescence to a living arrangement that seemed to revolve around the two of you splitting all the costs equally might be enough. And even if there is no contract, there’s a legal concept called “unjust enrichment,” which allows a court to award someone damages, despite there not being a contract, to prevent someone from unfairly profiting at the expense of someone else.

But even though you could be sued and could lose, it doesn’t necessarily mean your ex is going to get everything she asks for. Part of the analysis you should undertake (after you’ve thought through whether, contract or not, paying her is the right thing to do) is to consider what the damages would be if you lost. Even if she won, I don’t see why you would be responsible for the full $800. Wouldn’t you owe her, at most, $400? And that’s assuming that the deposit is not refundable, and that neither of you is continuing to live in the apartment. Depending on what has happened since or what could happen going forward, you both might determine that a court intervention would not be worth the time and effort.