Japanese knotweed growing in the garden

Non-disclosure of Japanese knotweed leads to massive increase in misrepresentation claims

A new warning has been issued to buyers of property about the ever increasing spread of Japanese knotweed.

Knotted is dubbed the “UK’s most aggressive and destructive plant”. Based upon the number of enquiries received in the last two months, it seems there must be many desperate sellers prepared to give false information to buyers in order to sell their property, perhaps without fully understanding the consequences of their deceit.

The Law Society’s Pre-Contract Enquiry form (TA6), which seeks certain information from the seller, has a specific question on Japanese knotweed.  The form states that:

“Japanese knotweed is an invasive plant that can cause damage to property.  It can take several years to eradicate."

It then asks sellers; “Is the property affected by Japanese knotweed?” with the following tick boxes Yes, No or Not Known. 

Where the seller answers “Yes” or “Not known”, one would be advised to make further enquiries before proceeding with the sale. Most buyers will rely upon a “No” answer as fact, and not give Japanese knotweed another thought. Sadly that won’t be the case for victims of misrepresentation.

In the spring new knotweed shoots grow from the below ground rhizome system, which can be extensive and affect a large area of ground. Knotweed will grow anywhere, through lawns, patios, driveways, even into buildings, causing damage and great stress for the buyer/new owner. 

The seller that did not disclose the presence of knotweed is probably thinking thank goodness we’ve got rid of that problem, unaware of the legal consequences they will undoubtedly face. A tick in the wrong box can prove to be an extremely expensive mistake. 

The buyer who is a victim of non-disclosure has the law on their side, and can bring a misrepresentation claim against the seller to recover all costs incurred, which may also include an allowance for the reduction or diminution in value of the property. 

It will be necessary to prove that the knotweed was present at the time of sale. An expert eye can determine the approximate age of the knotweed to prove its previous existence. Environet has consultants with experience in expert witness work and can assist solicitors with the technical aspects of any case.

It will also be necessary to prove that the seller was aware, or should have been aware of its presence, and had therefore provided false information to the buyer. That might be more difficult.

A simpler solution may however be for the buyer to buy Japanese knotweed indemnity insurance, a policy available from Countrywide Legal Indemnities Ltd, to protect your property from the risk. Cover is normally put in place on completion of the purchase. The losses covered are in the event of knotweed being discovered after completion. The policy provides protection against the up-front costs of treating Japanese knotweed, rather than the homebuyer having to sue the seller and seek recovery first. Buyers should ask their conveyancing solicitor for advice on the suitability of such insurance.  

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