The following is a discussion of a judgement on the conclusion of a contract with diplomats. In the underlying case, the plaintiff asserted a claim against the defendant for eviction from the flat, payment of rent in arrears, compensation for use, as well as reimbursement of appraisal costs and pre-trial legal fees. The defendant is a diplomat who has diplomatic immunity pursuant to Art. 31 para. 1 sentence 1 WÜD in conjunction with Art. 37 I WÜD.
Facts of the case
The defendants rented the new-build flat in dispute from the plaintiff when they first moved in. In addition to a rent increase at the end of 2 years, a diplomatic clause was also agreed. In this diplomatic clause, the defendant was granted a special right of cancellation with a notice period of 3 months in the event of a transfer, termination of the employment relationship or the severance of diplomatic relations between the sending state and Germany. In January 2023, the defendants reduced the rent by 100% on an ongoing basis on the grounds that the flat had been uninhabitable since September 2022 due to vermin infestation. They argued that the flat had in fact already been defective since moving in. Initially, the plaintiff offered to remedy the defect without recognising any legal obligation, although the rented flat had previously been unoccupied and pest-free when the tenant moved in. The consultation of an expert revealed that in this specific case, the pests were developing in dry plants or certain textiles. According to the expert opinion, the development of the pests could be prevented by sufficient ventilation and regular checks. The plaintiff then refused to pay for any additional hotel costs incurred. In March 2023, the plaintiff terminated the tenancy agreement without notice, or alternatively with due notice due to late payment. Since then, it has been disputed whether the defendants are responsible for the rental defect. However, the Regional Court and the Local Court are of the opinion that the inadmissibility of the action would already prevent clarification of the facts.
LEGAL ASSESSMENT
As a result of the full rent reduction for the period January to March 2023, the defendant tenants are in default of payment. Based on the tenancy agreement, the tenant is obliged to pay rent in accordance with Section 535 (2) BGB; if he does not fulfil this payment obligation, this may justify termination. The defendants should not have been entitled to a rent reduction for this. According to the findings of the expert opinion, the development of the pests could have been avoided by taking appropriate measures, which the defendants negligently failed to do, so that the rent reduction was not justified. After termination of the tenancy, for example by cancellation, the tenant is obliged to return the rented property in accordance with Section 546 BGB. Accordingly, in the underlying case, the owner of the rented property would also have a claim in rem against the tenant for restitution under Sections 546 (1) and 985 BGB.
JUDGEMENT – INADMISSIBILITY OF THE ACTION
According to § 18 GVG in conjunction with Art. 31 WÜD, diplomats are not subject to German jurisdiction without restriction. Exceptions apply to actions in rem relating to private immovable property, private probate matters, actions arising from private commercial or professional activities. The AG argued that the plaintiff could not invoke one of the exceptional cases, as nothing was brought forward in the court proceedings regarding his ownership status and he could not credibly demonstrate a lack of knowledge of the defendant’s diplomatic status with reference to the contractually agreed diplomatic clause. In any case, the defendants did not enter an appearance in the lawsuit. However, the plaintiff’s claim for restitution under Sections 546 (1), 985 BGB is also a claim in rem, as it concerns the transaction of disposal, so that the flat would be private immovable property and thus an exceptional case under Art. 31 WÜD. The Regional Court stated that actions in rem in relation to private immovable property of the sending state are only exempt under Art 31(1)(2)(a) WÜD if the diplomat is in possession of it for the purposes of the mission. Accordingly, the defendant is subject to functional official immunity, although it is in fact a private residence.