As always, please feel review my disclaimer before reading this post by following the link above or by clicking on this link. As always, the principles discussed apply only to the Commonwealth of Virginia.
Introduction
Working so close to Washington, DC, it's only inevitable that my work occasionally brings me into a situation in which I must deal with diplomats. This inevitably means dealing with issues related to Diplomatic Immunity. Now, most people understand that Diplomatic Immunity prevents a country from arresting the diplomats of another country. What many people do not understand is that Diplomatic Immunity also has effects in the context of civil law.
The reason most people do not understand this is that Article 31 of the Vienna Convention on Diplomatic Relations provides an exception to immunity from civil jurisdiction for actions "relating to any professional or commercial activity exercised by the diplomatic agent... outside his official functions." This means most things you would sue a diplomat over (not paying a bill, for example) would likely fit into that exception. However, there are many things that don't (if a diplomat hits you with his car while he's driving to work, you'll have to sue him in his home country). Perhaps the biggest place, however, where a diplomat can use his immunity to interfere with civil actions is in landlord-tenant law. Simply put, a diplomat cannot be evicted.
Inviolability
Now, you might say, "Hey, renting a property is outside a diplomat's 'official functions' so why can't I evict a diplomat?" The answer is that there are two types of diplomatic immunity - one that protects a diplomat from being brought to court (the type we most often think of), and one that protects a diplomat from being harassed by local authorities (called "inviolability").
As discussed above, the relevant law here is the Vienna Convention on Diplomatic Relations, a treaty entered into in 1961 and ratified by most of the world, including the United States. As a federally-ratified treaty, the Convention pre-empts any state law to the contrary. Article 22 of the Convention requires that the premises of a diplomatic mission be inviolable, meaning that "the agents of the receiving state may not enter them, except with the consent of the head of the mission." This means, for example, if there's a hostage situation in the Swedish Embassy, an American SWAT team cannot go in without first getting permission from the Swedish Ambassador.
Now, that may seem simple enough to understand, but the relevance of this to landlord-tenant law is a little bit more complex. In the 1980's and 1990's, the mission to the UN of the nation of Zaire became severely delinquent in its rent for its office space in New York. The landlord sought to evict Zaire. The Second Circuit, in a ruling that has been widely accepted across the country since it was made, ruled that since enforcing the eviction would require the local police to enter the premises of the mission, this would violate Article 22 of the Convention, and as such an eviction could not be ordered.
Now, this might all make sense to you - that one cannot take action like this against the official mission - but why should this apply to a diplomat's private home? Because Article 30 of the Convention requires that "the private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission." In other words, you cannot do to the home of a diplomat what you cannot do to the diplomatic mission. If you cannot forcibly evict a mission, then you cannot forcibly evict a diplomat.
Reasons to Rent to a Diplomat Anyways
Now, you might look at this and say "holy crap, if the diplomat violates his lease, I'm screwed, I should never rent to a diplomat!" I can understand the reaction. The inviolability of a diplomat means you cannot evict the diplomat if he is not paying rent, committing a crime on the property, or even just staying past the end of the lease term and refusing to leave. Nonetheless, saying you should never rent to a diplomat may be a little extreme. There's a reason this isn't a well-known issue - it doesn't come up much.
Diplomats are representatives of their countries. They are usually chosen from amongst their countries' respected citizenry, and they usually consider it to be part of their job to leave a good impression with all they encounter in their host country. The fact is, the simple moral obligation to obey their lease will be enough for most diplomats.
Moreover, many diplomats do not pay for their own housing, and you would in fact be contracting with their mission - and by agency, their home country. Most countries are pretty reliable to pay their bills - they have the money, and they are concerned with maintaining positive diplomatic relations.
Finally, even if your diplomatic tenant does become behind on rent, you can still sue and collect on your judgment via garnishment (possibly not of wages, but bank accounts, for example, remain available). You just can't evict.
Ways to Protect Yourself
So, if after reading the above you conclude that, ok, maybe it is ok to rent to a diplomat after all, you might be wondering how best to protect yourself. I'll start off by giving you one thing you cannot do. You cannot require the diplomat to waive his immunity as part of your lease. Well, that's not completely true, you can, but it would be meaningless. This is because diplomatic immunity is not a right a diplomat can waive. Diplomatic immunity belongs to the country and only the country can waive a diplomat's immunity. And no, asking a mission to sign off on a waiver for a lease is just not going to happen, so it's probably best not to try.
The first thing I would recommend doing as a landlord is finding out - if your diplomat is paying for his own housing - if his mission would be willing to co-sign the lease. As I said, missions are going to be fairly reliable payers, so having a mission as a back-up is always a good plan.
Regardless of whether or not the mission will co-sign the lease, the recognition of the potential for serious issues may warrant charging a higher than usual security deposit. The Virginia Residential Landlord and Tenant Act allows a security deposit of up to two months' rent, while a common law lease can charge anything that is not "excessive." If you are not in a VRLTA situation, I would strongly recommend considering asking for a security deposit of between 6 and 12 months of rent. I believe the risks involved could warrant an argument that such an amount is not excessive and it keeps you protected in case of a prolonged dispute. The advantage of a high security deposit is that you do not give possession of the property until the deposit is paid, and if the deposit is not paid, you don't have to evict the person, since they never got to move in to begin with.
Finally, you should consider letting the State Department know that you are willing to lease to a diplomat. The State Department likes having landlords that are willing to do so - it helps with diplomatic relations - and letting them know this in advance will make them more likely to work with you if an issue comes up. For example, if your diplomat really does stop paying rent, you can ask the State Department to request the foreign country waive the diplomat's immunity, and if they do not, declare the diplomat persona non grata and have them dismissed from the country. There's a good chance that failure to pay rent alone will not lead to an immunity waiver or a PNG declaration from the State Department, but if that diplomat's had other issues, non-payment of his rent could very well be the straw that breaks the camel's back.
Discrimination
Now, looking at the above, some of your alarm bells may have gone off about housing discrimination. Charging different people different security deposits, or simply refusing to rent to a class of people, probably sounds like a problem to you. Good, all landlords should think this way. However, at present there is no law that bars you from "discriminating" against diplomats in renting out property. As such, you can refuse to rent to diplomats, or charge higher security deposits to diplomats.
Conclusion
Diplomatic immunity has a surprising impact on landlord/tenant law. Specifically, diplomats cannot be evicted. This should cause any landlord to approach a diplomatic tenant with caution. Nonetheless, by and large diplomats are reliable payers, and landlords should not be afraid of renting to them just because of the challenges that might arise in the rare case of a bad diplomat-tenant. If you are considering renting to a diplomat and would like to discuss your options, or if you are a diplomat-tenant having trouble with your American landlord, please feel free to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up a consultation with me to discuss your options. Your initial consultation is free for up to half an hour!
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