Sellers must be aware of the Knotweed Question

By James Cottrell

Partner – Head of Commercial Property

03 February 2023

Article Insights

Almost every homeowner is likely to have heard of Japanese knotweed and the problems this invasive species can cause here in the UK, but sellers should still be wary of declaring ‘No’ when answering questions about the plant on their TA6 property information form.

A homeowner recently found to their cost, that answering, ‘Don’t know’, could have saved them hundreds of thousands of pounds in legal fees after they were sued by a buyer who later found Japanese knotweed in their garden.

Having bought the house in London in 2018, the new owner Mr Downing, was tidying the garden and discovered the knotweed. He then sued the previous owner Mr Henderson, for £32,000 for failing to disclose knotweed on the property information form.

The TA6 Property Information form asks the seller for a lot of details, from the usual questions about the property boundaries to matters concerning parking. However, there is also a specific question asking if the property has been affected by Japanese knotweed.

Whilst it can be hard for a property owner to know if the house may have been affected before they owned it, the Law Society’s guidelines to completing the from are quite specific and require that the seller provides accurate answers.

The guidelines point out that a seller providing incorrect or incomplete information to the buyer when completing the form, may leave themselves liable to a claim for compensation by the buyer or their refusal to complete the purchase.

Mr Henderson answered ‘No’ to the question asking if the property had been affected by knotweed. However, if he had simply answered ‘Not known’ on the form instead, the buyer could have investigated further but more importantly, Mr Henderson would not have given an unequivocal reply to something where he either did know there was a presence of Japanese knotweed, or he did not know either way.

Although Mr Henderson claimed to have not known about the knotweed, evidence was presented in court that the knotweed had previously been at least two metres tall and had been treated with herbicide – which can kill the plant, but only over a sustained period.

Removing Japanese knotweed is expensive

The problem of Japanese knotweed should only be resolved by professionals because removing and destroying all traces of the plant can be particularly tricky, as even a tiny piece left in the ground can allow the plant to regrow.

The plant is also classified as controlled waste under the Environmental Protection Act 1990 and can only be disposed of at licensed landfill sites. Cutting up the plant and dropping it in a garden waste bin puts a homeowner at risk of a huge fine or even imprisonment.

It is expensive to completely guarantee the removal of Japanese knotweed, which is why the homeowner in London sued the previous owner, as they likely faced a big bill to rectify the situation.

The defendant Mr Henderson told the court that he had lived at the address for three years and in all that time whilst gardening, had not seen any signs of the knotweed. His surveyors report when buying the property in 2015, had not recorded signs of knotweed.

The Judge said that everything hinged on the specific facts of the act of representation and its individual circumstances, stating that Mr Henderson answered under oath that he genuinely did not believe there was any Japanese knotweed present in his garden.

But the judge said expert evidence was at odds with Mr Henderson’s claim, because it suggested the knotweed had once stood two metres tall, before herbicide had been used in an attempt to destroy it completely.

In finding in favour of the buyer Mr Downing, the Judge stated he was not satisfied that Mr Henderson’s claims to have had no knowledge of the knotweed.

Mr Henderson has been ordered to pay £32,000 in damages and also to pay Mr Downing’s legal costs which could be as high as £95,000. He also faces having to pay his own legal costs, which are thought to be around £100,000.

If in doubt, check

The lesson for Mr Henderson and of course other sellers is to be careful and accurate when providing detail for the TA6 property information form. Clearly from the example above, if any doubt exists, explain you are not sure, especially when discussing the form with a solicitor.

By not expressing a firm positive or negative answer, the onus to check will switch back to the purchaser, who can request a Japanese knotweed survey is undertaken, which will cost a few hundred pounds, for their own peace of mind and to satisfy any requirement their lender may have.

Of course, the first step in ensuring all the details you have supplied are accurate and you avoid the potential risks, is seeking the advice of experienced residential conveyancing solicitors, who will ensure you have not made any claims that you cannot substantiate, either by error or omission.

If you want to speak to someone about this matter, or feel you may have grounds to make a similar claim, please get in touch here with our property or litigation teams here at Taylor Walton.

Disclaimer: General Information Provided Only
Please note that the contents of this article are intended solely for general information purposes and should not be considered as legal advice. We cannot be held responsible for any loss resulting from actions or inactions taken based on this article.