中古住宅の屋根裏に多数のコウモリか住む瑕疵

中古住宅の屋根裏に多数のコウモリか住む瑕疵 


購入した築後8年の中古一戸建住宅の屋根裏に多数のコウモリが棲息し、駆除が必要なことは、隠れた瑕疵に該当するとして買主から損害賠償請求が認められた事例
(神戸地裁・判決平成11・7・30)

1紛争の内容

①買主Aは、媒介業者Bの媒介により、売主Cから、築後約8年を経過した一戸建の中古住宅を購入した。

②買主Aは、入居後間もなく本件建物の屋根裏に多数のコウモリが棲息していることを発見し、調べたところ屋根裏等に大量の糞が推積していた。

③買主Aは、この事実について『隠れた瑕疵』に該当すると主張して、コウモリの駆除費用等について売主Cに対して瑕疵担保に基ずく損害賠償を、また同時に媒介業者Bに対して業務上の注意義務を怠ったことによる損害賠償を、それぞれ請求した。

④これに対し、売主Cは本件売買契約締結当時、多数のコウモリが棲息していた事実はないし、コウモリがたとえ棲息したいたとしても建物自体の性質や性能が劣るものではないから瑕疵には当たらないと主張した。
また、媒介業者Bは本物件に多数のコウモリが棲息していることは知らなかったし、相当の注意をしたも知りえなかったので、業務上の注意義務違反は無いと主張した。

2.本事例の問題点

屋根裏にコウモリが棲息することは、建物の瑕疵といえるか。

3.本事例の結末

判決は、次の理由により売主Cに対する瑕疵担保責任に基づく請求を認めたが、媒介業者に対する請求は認めなかった。

①本物件売買契約の締結より、約4年前から本件建物にはコウモリが棲息していた。

②人が生活する建物に一定の生物が棲息することは通常避けることができないが、単に雨露をしのげばいいというものではなく、休憩や団らんねど人間らしい生活を送るための基本となる場としての側面があり、その意味で建物としてのグレードや価格に応じた程度に快適に起居することができることも建物の備えるべき性質として考慮すべきである。

③コウモリは、害獣とは言えないにしても一般的には不気味なイメージで見られていること、これにより糞尿も大量であり、一般人の感覚に照らしても本件建物は、買主Aの支払った売買価格に見合う清潔さや快適さを備えたものとは言い得ないので、瑕疵に該当する。

④従って、売主Cは買主Aに対し、駆除に要する費用約112万円を損害賠償として支払う義務がある。

⑤媒介業者Bについては、本物件売買に至るまでの媒介担当者の行動を検討するに、担当者らは、コウモリの存在を疑うべき事情もなかったこと等からみて、媒介契約上の注意義務を怠ったとは認められない。

(宅地建物取引主任者講習テキストより)

重要事項説明で、シロアリの説明はよくしますが・・・

コウモリ・・・・が、瑕疵になる・・・・

売る時に、ちゃんと駆除をするか、私の家には、コウモリが住んでいますと言えば 112万円を払わずにすむ・・・・

 

ネズミは、どうですか・・・?

最近向かいの文化住宅が解体されて、我が家にネズミの親子が住み着いています・・・
昨日は、2匹捕まえましたがまだまだいるみたい。。。。 (^^♪

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