The Concept of a Stay Away Agreement
A stay away agreement is a type of out of court agreement between two people to skip the formalities and together agree that one party (or both) will "stay away" from the other. The general idea is to skip the legal process of having a criminal court or civil court order the parties to stay away from each other, and instead have the order be agreed to by the parties on their own. Although it can be used in virtually any situation where two parties might want to avoid contact and still keep things civil, stay away agreements are most common in allegations of domestic violence and allegations of harassment.
The primary use of a stay away agreement is to create legally binding prohibitions on certain behavior. A good example would be one person who agrees that he or she will not commit domestic violence against another person. In New York State, courts are given the power to criminalize this behavior when there are allegations made by a spouse or intimate partner that he or she suffers domestic violence . Rather than go through that process where a judge orders the person to stay away, the couple avoids the intimations of a criminal record and agrees to "stay away" from the other, or agrees not to harass or intimidate the other.
Stay away agreements have been used in situations like:
Stay away agreements are legal agreements that have significant legal implications. Their effect varies based on the relationship of the two parties, as well as the allegations between them. They are not simply agreements notwithstanding which the world goes on. Stay away agreements are legal agreements, and have the same practical effect – in most situations – of an injunction or a court order. Throughout the state of New York, stay away agreements are considered to be the equivalent of injunctions, have the same legal effect, and courts have authority to enforce them in criminal court and in civil court.
Legal Basis for Stay Away Agreements
Stay Away Agreements are recognized in Florida law as contracts, and like any contract, they must have certain elements to be enforceable. The elements that are necessary for the formation of a stay away agreement include: an offer; acceptance of the offer; sufficient consideration; and a meeting of the minds (or a "common understanding" between the parties). An offer is essential. Without an offer, there can be no agreement. The offer must be clear enough to allow the other party to know exactly what terms are being offered for acceptance.
An offer must also be communicated to the other party to be valid. Only the person who the offer is being communicated to has the power to accept the offer. An offer must be distinguished from an invitation to treat. An invitation to treat is merely an invitation to enter into negotiations. It is essentially a willingness to enter into a bargain but it does not in itself form a binding agreement or an offer. For example, advertisements, catalogs, circulars, price lists and quotations are merely an invitation to treat.
The next element required to form a valid Stay Away Agreement is acceptance. Acceptance occurs when the person to whom the offer is made expressly accepts the offer. Acceptance must be communicated to the offeror; mere silence in response to an offer is insufficient to deem an acceptance. If the offeree attempts to "accept" an offer but proposes to change it in any material way, a counteroffer results. A counteroffer constitutes a rejection of the original offer and operates as a new offer.
Consideration is a fundamental requirement for a valid contract. It is an essential element for the formation of a stay away agreement. There must be a benefit to a promisor or a detriment to a promisee. In the case of a stay away agreement, the benefit will generally be the safety of the party. The detriment may be a restriction on the behavior of the person who must stay away from the other party. No particular form of words is required in order to create a stay away agreement. It is only necessary that the parties intend to create legal relations. This typically results in a document that is signed by both parties. The most important element is what is commonly referred to as a "meeting of the minds." There must be a common understanding of the subject matter and the terms of the agreement.
Typical Scenarios for Stay Away Agreements
Stay away agreements are used in a variety of situations when one individual or entity has been harassed by another individual or group of individuals. While most commonly stay away agreements are used in cases of domestic violence, they are also used in cases where an employee is being harassed at work, where neighbors are abusing or harassing each other and where there is a business dispute where one party is being harassed or threatened by another.
In cases of domestic violence, it is common for many or all of the following to occur: In business settings, stay away agreements can be used by a company to warn an employee or ex-employee to cease communicating or harassing an employee where it will not otherwise terminate the employee or take further action without an agreement.
How to Draft a Stay Away Agreement
There is no special form or legal language that is required for a stay away agreement, so the following elements should only be viewed as a suggested framework:
The above information is generally sufficient for the purposes of making the stay away agreement a legally enforceable document. In addition to the above, you should make sure that the parties are identified correctly. For example, if a minor is involved, make sure that the minor is identified personally and that the parent’s name is listed separately. Further, you want to avoid using the words "this agreement." It is a good idea to start out specifically identifying that the person is agreeing to stay away from someone. For example, "A agrees that he shall have no contact of whatsoever kind with Plaintiff B in whatever form this may take." It is surprising how much ambiguity will be introduced if you use phrases like "this agreement." It also does not hurt to identify the "why" of your agreement. For example, "Party A has been harassing and stalking Party B and as such Party A agrees to stay away from Party B and enter into this agreement."
When two parties agree on the elements of a stay away agreement and then sign the written estimate, you are usually ending up with a document that has the elements necessary to be binding on both parties. Unfortunately, things are not always so easy. The first thing that happens is that one party says that the other party did not agree to the terms in the writing. Accordingly, if you want the agreement to be enforceable, make sure that the agreement is signed by both parties. I have found that the best way to do this is to go through each term of the agreement, including the reasons that they are entering into it. Then I have the parties sign on the very last page in front of a notary public. At the least, you want to get the agreement signed in front of witnesses.
How to Enforce a Stay Away Agreement
Violations of stay away agreements can be enforced under civil or criminal remedies. Which avenue is appropriate will depend on the facts of the particular case.
If the stay away agreement is incorporated into a public premises order, which is a court approved protective order authorized by the state’s statute in favor of the owner or occupant of certain premises, upon a violation of the order the owner or occupant can seek a show cause hearing for contempt of court against the violator and may petition the court for a criminal complaint to be issued against the violator. A violation of an order issued under the public premises statute is a criminal offense (treatable as a misdemeanor or felony) and can not be dismissed even if the parties reconcile.
If there has been no incorporation into a public premises order, upon an individual’s violation of the stay away agreement , the parties may execute the criminal complaint form from the District Attorney’s Office (this form will not be acted upon by the District Attorney without a stay away order, but it will be held on file for future reference if necessary), the stay away agreement may be filed with the local police department with a request that a criminal complaint be filed against the violator, or the person violated may file a private complaint with a court of competent jurisdiction. The violator can be arrested or summoned to appear in court to answer the charges. Upon a conviction of violation of a stay away agreement the party can be fined such costs as may have been incurred in the issuance of the criminal complaint and, in addition to the fine, the violator may be imprisoned for a time not exceeding 90 days in the discretion of the court.
Alternatives to a Stay Away Agreement
There are several legal measures and agreements that can be used in lieu of or as a complement to stay away agreements. The most popular alternative is the Good Neighbor Agreement which, as its name implies, is a more neighborly approach than the stay away agreement described above. With the Good Neighbor Agreement, the parties may want to restrict certain activities, the time of those activities or even when a home is to be used as a residence. The Good Neighbor Agreement is best suited for situations in which the parties are neighbors and have the ability to live together, but not as friendly neighbors. The Good Neighbor Agreements should be drafted in such a way that clarifies when the activities described therein can take place, in what areas of the property and what activities are permitted and which are prohibited.
Similar to the Good Neighbor Agreement, you may also want to consider a Domestic Relationship Agreement in which you agree with the other party that certain activities may be appropriate based upon your domestic relationship. These activities may not be appropriate based upon the terms of a stay away agreement that prohibits all contact between the parties. There is no carbon copy to the Domestic Relationship Agreement and is drafted based upon the particular circumstances of the parties to be appropriately tailored.
When to Consult with an Attorney
Those who are considering entering into a stay away agreement should contact a legal professional to help draft the stay away agreement to ensure that the agreement is drafted fairly and in a way that can later be enforced in court should either party not live up to their end of the proposed agreement .