What Is a Protective Order?
Arizona recognizes five different kinds of protective orders, the most common of which are orders of protection (OPs), injunctions against harassment (IAHs) and injunctions against workplace harassment (IAWHs). As the rules for each of them differ, they are discussed separately below.
Orders of Protection (OP)
1. Who can get an OP?
An OP is a protective order issued by a court to persons who seek protection from other persons with whom they have a prior close relationship, usually identified by blood or marriage, or something equivalent to those such as a dating relationship or a prior or current roommate relationship. OPs are issued when the parties involved (1) are married, or were married in the past; (2) live together or lived together in the past; (3) have a child in common; (4) one of the parties is pregnant by the other; (5) one of the parties is a parent, grandparent, in-law or sibling, or; (6) they have a long term dating relationship. Unless the parties qualify under this relationship test, no OP can be issued.
2. What kind of conduct is necessary in order for an OP to be issued?
OPs are issued when one of the two parties (the plaintiff) has alleged that the other has engaged in an act of domestic violence against him or her. For purposes of OPs, “domestic violence” is broadly defined to include such things as physical assault, threats, intimidation, harassment, kidnapping, stalking, criminal trespass and other similar kinds of conduct.
3. Do you need to have a trial or proof of criminal conduct in order to obtain an OP?
No. As noted above, OPs are issued for a variety of issues involving domestic violence when the idea is to separate the parties in order to keep the peace. Domestic violence that involves criminal conduct is adjudicated in criminal proceedings, not in matters involving orders of protection.
OPs are issued without a hearing, generally on the same day that they are requested. There is no charge for an OP, and OPs are generally served on the defendant, at no cost to the applicant, by local law enforcement. If the defendant chooses to contest the OP, courts then schedule a contested hearing within five or ten working days, depending on the situation. Following the hearing the judge can keep the OP in place, modify it, or dismiss it entirely.
4. I have seen situations where a court issues an OP in favor of an unauthorized occupant and gives the unauthorized occupant exclusive possession of the premises. How does that happen?
The court’s position is that the most important thing when they get a request for an OP where violence is alleged or is likely to occur, is to separate the parties. Since this is an ex parte hearing, they will almost always give exclusive possession to the person seeking the OP, rather than waiting for a full hearing to see who has a better right to possession. The lawful tenant (or home owner) then needs to file a motion requesting a hearing on the OP, and a separate motion asking the court to reconsider the issue of possession. The court will do its best to schedule those hearings within five working days. During the period between the two hearings, the lawful tenant/owner can be arrested for violating the OP if he/she returns to the dwelling. Until the court authorizes the lawful tenant/homeowner to return, that person may not return to the premises unless the court authorizes a temporary return, accompanied by law enforcement, to collect important belongings in the premises.
5. What happens if an unauthorized occupant is given exclusive right to possession of the premises and then vacates. Can the authorized tenant return?
In this situation, the person who has exclusive right to possession per the OP, is required to notify the court that he/she is vacating and that the premises are empty. The dispossessed defendant can then file a motion asking for leave to return to the premises once they are vacant. The dispossessed defendant (often the lawful resident) may not return until he/she receives permission from the court to do so.
6. Are landlords required to terminate a lease agreement with the victim if a tenant obtains an OP?
Under A.R.S. § 33-1318, if a resident obtains an OP and asks to be allowed out of his/her lease, the property is required to grant the request and allow a lease termination, without penalty, if the OP application demonstrates that the complained of conduct occurred within thirty (30) days immediately prior to the written request for lease termination.
7. Can a tenant still terminate a lease agreement after obtaining an OP if the defendant in an OP does not live on property and/or has no relationship to the community where the plaintiff resides?
Yes. Any time a tenant obtains an OP, even if the resident lives in a different city or state, the lease may be terminated at the tenant’s request as long as the request is made within thirty (30) days of the most recent act of domestic violence.
8. How do I know when the most recent act of domestic violence occurred?
This information is contained in the application that the plaintiff submits to the court, but is not on the OP itself. When a tenant asks to be let out of a lease without penalty because he/she has obtained an OP, it is a good practice to ask the tenant to provide you with a copy of the application upon which the OP is based. Courts provide a copy of this application to the tenant so the tenant should have it and should be able to easily give it to you.
9. Can I require a tenant to vacate if the tenant has obtained an OP?
No. The lease terminates only at the request of the tenant. Under A.R.S. §33-1318, a tenant may remain at the property even if he/she has obtained an OP. He/she may also require the landlord to change the locks for the unit and the landlord is required to do so, at the tenant’s expense, upon request after an OP has been obtained. Because most victims of domestic violence have traditionally been female, forcing a person to vacate after she/he has obtained an OP has been treated as sex discrimination under the Fair Housing Act (“FHA”). 10. If a tenant terminates after obtaining an OP, who is responsible for lease break fees and concession returns?
The property may hold the defendant liable for lease break fees and concession returns since the defendant is the person who is ultimately considered responsible for the lease having been broken. A property may only charge a tenant who obtains the OP rent through the remaining date of the tenancy (up to 30 days unless a shorter period is agreed upon by the parties), late fees, cleaning and damages. The defendant in the OP is liable even if they didn’t live at the property because of the special liability language included in ARS 33-1318.
11. What happens if there are other tenants on the lease when a tenant seeks to terminate the lease due to an OP?
The lease will then terminate as to all remaining tenants. If the other tenants in the unit want to remain on-site, they need to reapply and qualify on their own for the new unit. Roommates are also allowed to break the lease without penalty if one of the roommates obtains an OP but this does not apply to the alleged perpetrator. The alleged perpetrator/tenant should be evicted for this conduct. There may be an issue regarding the security deposit and legal advice should be sought to correctly address this issue.
12. How long can I require the vacating tenant to remain in the unit after he/she has provided a copy of an OP?
Under A.R.S. § 33-1318, the lease terminates at a mutually agreed upon date within thirty (30) days after the tenant has provided a copy of the OP to you. It is a good practice to ask a tenant who is terminating due to an OP to sign an agreement indicating that this is the reason for the early termination and have the tenant provide identifying and contact information for the defendant who will be held responsible for the lease break fees and concession returns. We have a sample form on our website.
13. If I obtain an OP, how long will the defendant be required to stay away?
Until this year, the OP was good for one year but could be renewed if requested and necessary. Beginning this year the OP is good for two (2) years and, if requested and necessary, can be extended for another term.
14. Can I evict a tenant who has engaged in an act of domestic violence?
Generally, yes. A.R.S. §33-1368(A) permits an immediate eviction if the tenant has engaged in conduct that is violent, jeopardizes the health, safety, or welfare of others, or whose conduct involves imminent or actual serious property damage.
Injunctions Against Harassment (IAH)
1. Who can get an IAH?
An IAH is a protective order issued in situations where the plaintiff does not have the preexisting relationship with the defendant that is required for an OP. These are usually issued in neighbor disputes or other disputes between unrelated persons.
2. What kind of conduct is necessary in order for an IAH to be issued? Because disputes subject to IAHs generally do not have the same risk of harm as those involved in OPs, Arizona courts require applicants to demonstrate at least two incidents of “harassment” that occurred between the defendant and the applicant, at least one of which must have occurred within the last year.
3. If a resident provides a copy of an IAH is that person entitled to be released from the lease contract?
Not usually. A.R.S. § 33-1318.01 requires a landlord to release a tenant who has obtained an IAH from a lease contract only if the tenant is a non-probationary certified police officer, sheriff deputy, detention or corrections officer or other non-probationary peace officer. In all other cases, except cases where the applicant is a victim of sexual assault, the dispute is totally between the parties and Management should avoid being involved in it. 4. If a tenant terminates after obtaining an IAH, who is responsible for lease break fees and concession returns?
With the exception of an IAH obtained by a law enforcement officer, if a tenant vacates after obtaining an IAH against another person, that tenant has broken the lease and is responsible for early termination fees, just as any other tenant would be.
According to A.R.S. § 33-1318.01, the property must release the law enforcement officer from the lease after officer obtains an IAH, if a written request is made and the conduct that caused the IAH to be issued occurred within thirty (30) days prior to the request for lease termination.
When a landlord is required to release a law enforcement officer from a lease agreement due to issuance of an IAH, the lease is terminated without penalty except that the law enforcement officer must repay any concession or other benefit that was actually received or used by the officer prior to the date of the release. Of course the officer is also responsible for rent, late fees, and other fees and charges that were incurred prior to the date the lease terminates.
Injunctions Against Workplace Harassment
Injunctions against workplace harassment are a variation of an IAH that are issued when a customer, tenant, patron or other person of a place of business has engaged in harassment or other “domestic violence” directed at the business or its employees. A petition to the court for an Injunction Against Workplace Harassment must be filed by "an employer or an authorized agent of an employer." The Petition must allege at least one act of specific act harassment or “domestic violence” and the date of occurrence. Generally, the receipt of multiple emails is not considered sufficient, but a property can obtain an Injunction Against Workplace Harassment if the tenant is threatening staff, refusing to leave when asked to do so, or engaging in other threats or inappropriate behavior. The employer or authorized agent must sign and swear or affirm the petition before a person authorized to administer an oath.
If the Court grants an Injunction Against Workplace Harassment, the Court may do any of the following:
§ Restrain the defendant from coming near the employer's property or place of business and restrain the defendant from contacting the employer, or other person while that person is on or at the employer's property or place of business or is performing official work duties.
§ Grant any other relief necessary for the protection of the employer, the workplace, the employer's employees or any person who is on or at the employer's property or place of business or who is performing official work duties.
Arizona courts are authorized to and usually do charge a fee for issuance of an Injunction Against Workplace Harassment, and employers are also responsible for paying a constable or process server to serve it. As with all other protective orders in Arizona, any defendant who wants to contest the injunction may submit a written request to the court and, once the request is received the court will schedule a hearing within ten (10) working days
How and When Are Injunctions Issued
All Arizona courts have authority to issue any of the protective orders described above (with the exception of injunctions involving custody disputes or similar issues). Most courts now require applicants to fill out an online questionnaire. Those forms are available here: https://azcourthelp.org/forms/protective-orders-form. Once the court receives the form the court will typically schedule an interview with the applicant via zoom or teams, and the judge will question the applicant as to the specific facts alleged on the protective order request form.
A decision on whether to grant a protective order is typically made the same day that the interview occurs. If the court has questions about whether an application should be approved the judge will typically schedule a contested hearing within seven days. Both the applicant and named defendant must appear at the contested hearing.
If either party disagrees with the court’s decision, or if the order was issued ex parte, the objecting party may file a motion requesting a contested hearing. Those hearings are normally in person hearings. If exclusive right to the premises has been granted the court attempts to schedule those hearings within five days of the motion; if exclusive use of the premises is not an issue, the hearing is typically scheduled within ten days of the motion.
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