It’s been a tumultuous year for buyers and sellers of all assets, including real estate. With the majority of news stories covering Covid-related developments, it’s been all too easy to miss changes in the smaller things. As these smaller things can often be quite significant “gotchas” for sellers (when it’s too late), here is one development you’ll be thankful to know…
What is japanese knotweed?
Japanese knotweed is a highly invasive plant which has the tendency to encroach onto neighbouring land. The Environment Agency has described it as one of the ‘most aggressive, destructive and invasive plants’ in the UK. It can spread undeterred through tarmac, concrete, driveways and drains.
Knotweed is treatable, but can be an expensive exercise depending on the scope of work involved. Treatment costs typically range from a few thousand (in domestic settings) to multiples of tens of thousands and more for commercial properties.
Having a property with any association with knotweed can affect the house price significantly, by up to 10%. Up to 5% of all UK properties are estimated to be affected by it.
The legal cost of Japanese Knotweed is growing
Over the past few years, the courts (encouraged by claimant japanese knotweed lawyers) have expanded the scope of liability for landowners who enable knotweed to intrude upon adjacent land.
Following a case in 2018, the courts now award damages for what is called “loss of amenity” of the land. This liability operates in addition to prior case law, which awards damages to cover the cost of treating the problem, as well as the estimated reduction in value of an affected property – or even the stigma of such. This is an area which should therefore be on the radar for property owners with untreated knotweed, as well as their insurers, as liability can be quite substantial.
The change in rules in 2020
Anyone who has sold a property will be familiar with the Property Information Form (known as TA6): it forms part of the contract, and can give rise to legal liability if any information on it is incorrect or misleading. A new (fourth) edition was released earlier in 2020, making amendments made to current guidance for sellers on disclosing the existence of knotweed.
Question 7.8 asks “[whether] the property affected by Japanese knotweed”, offering the choice between “Yes”, “No” and “Not known”.
Unless the seller is absolutely sure there is no knotweed, in order to save themselves from liability, sellers should answer ‘Not known’. Indeed, there appears to be no incentive to mark “No”, which now serves to provide evidence for knotweed compensation lawyers when aggrieved purchasers discover the problem further down the line.
The revised form (and its accompanying guidance) says in full:
“The seller should state whether the property is affected by Japanese knotweed. If you are unsure that Japanese knotweed exists above or below ground or whether it has previously been managed on the property, please indicate this as ‘Not known’. If ‘No’ is chosen as an answer the seller must be certain that no rhizome (root) is present in the ground of the property, or within 3 metres of the property boundary even if there are no visible signs above ground.”
It’s worth noting that if a seller puts “Not known”, it’s all on the buyer to make their own enquiries and to satisfy themselves that there is no problem.
If you have any questions about knotweed as either a property seller, or someone who has recently bought a property with knotweed, it is easy to speak to a qualified solicitor who can provide free advice. Just get in contact with the link above.
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