A tenant is not in default of payment if the landlord fails to make agreed donations to pay the rent. This was decided by the Frankfurt am Main Higher Regional Court (AZ: 2 U 115/22). The specific case concerned a non-profit foundation that operated a museum in a rented commercial building. The landlord made a donation which the charitable foundation used to pay the rent.
In 2020, however, the building was sold to a new owner. However, this real estate company stopped transferring donations to the charitable foundation, although this had been agreed otherwise. The foundation was therefore no longer able to pay the rent and fell into arrears. The real estate company then sued for the rent arrears and the court rejected the claim for eviction and rent payment, as the foundation did not actually owe the real estate company any rent due to the lack of donations. The originally agreed rent was reduced by the payments declared as donations. The parties had negotiated the donation agreement separately in order to benefit from tax advantages. The donation was not in return for a specific service, but to promote charitable purposes. This allowed the donation to be tax-deductible, which was advantageous for both parties. The decision is not yet legally binding.source: AZ: 2 U 115/22/ordentliche-gerichtsbarkeit.hessen.de
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