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Compared to regular tenancies, there are a few things to consider when letting to diplomats when drafting contracts. Potential tenants can be embassies, consulates or diplomats. According to the decision of the KG, judgement of 23.05.2005 – 8 U 234/04, the agreed purpose of the contract must be taken into account when classifying the tenancy agreement as a residential or commercial tenancy agreement. If the tenant does not intend from the outset to live in the property himself (as is regularly the case with embassies or consulates), but rents it for the purpose of subletting it to company employees, a commercial lease is concluded. This applies even if the premises are suitable for residential purposes and are ultimately also used for this purpose by the employees. On the other hand, if the tenant is an individual diplomat, a regular residential tenancy agreement is concluded.


Diplomats are part of a so-called ‘privileged group of persons’ within the meaning of Art. 14 WÜD, which is protected by diplomatic immunity in accordance with Art. 31 para. 1 sentence 1 WÜD in conjunction with Art. 37 I WÜD. Diplomatic immunity comprises a fundamental exemption from measures of civil and administrative jurisdiction, as well as an absolute exemption from measures of criminal prosecution by the receiving state. The purpose of immunity is to ensure the effective exercise of diplomatic or consular functions. According to Article 29 sentence 1 WÜD, this immunity guarantees both the inviolability of the person and the inviolability of the private home. This ‘privileged group of persons’ includes members of missions established in Germany, diplomatic staff, their family members belonging to the household and also their private domestic servants. While comprehensive immunity applies to diplomats on secondment, this is limited to official immunity for resident diplomats of the receiving state. Official immunity only protects the official, but not the private actions of persons. However, Art. 31 para. 1 WÜD provides exceptions to this principle: it does not apply to legal disputes in probate matters or disputes concerning immovable property (including, for example, land). A distinction must therefore first always be made as to whether the state has acted under private law or in the exercise of its state authority. A state or consulates, embassies and diplomats as representatives of the state can no longer invoke their immunity when acting under private law. One such classic act under private law is, for example, the conclusion of a (residential) tenancy agreement.


The state representatives can therefore be subject to German jurisdiction, but if enforcement measures are to be carried out, considerable problems arise in the enforcement of claims. Such problems can arise either as early as the discovery proceedings or at the latest in the enforcement proceedings. Classic examples are eviction proceedings, notice periods and rent. Preventive measures should therefore be taken at the contract drafting stage in order to avoid any problems that may arise later. As early as the contract initiation stage, information should be requested from the diplomats as to which group of persons they fall under within the meaning of the Vienna Convention on Diplomatic Relations.

A preventative measure would be to agree a diplomatic clause that declares the explicit waiver of immunity. It should be noted here that a separate waiver of immunity is required for the enforcement of judgements. Ideally, cancellation modalities such as a notice period and a possible special right of cancellation should also be clarified in advance. If the appeal process has been exhausted or declared inadmissible and the claim is therefore not enforceable, there is nevertheless no hopeless situation. In principle, there is the possibility of mediation between the two parties via the Federal Foreign Office. In the ideal case of mediation, the landlord receives compensation from the state of the expatriate, even though there is no legally enforceable claim. This mediation option can also be utilised if legal proceedings do not promise success from the outset due to the immunity of diplomats.