By Ben Pett - Trainee Solicitor
In recent years the subject of Japanese Knotweed has received a relatively significant amount of media attention. Far removed from the common garden weed, its rapid rate of growth has helped earn it the label as ‘the UK’s most aggressive, destructive and invasive plant’ (Environment Agency).
Failure to control it can land you with a fine and an ASBO, while in March 2014 an individual’s ‘paranoia’ surrounding the presence of the plant on his property, was widely reported as a motivating factor behind both the tragic murder of his wife and his eventual suicide.
The plant has certainly acquired quite the reputation for itself, but just how much of it is media hyperbole?
While it is estimated that only 1% of UK properties have been affected, the impact of it on a Conveyancing transaction can be extremely detrimental to sellers, purchasers and lenders alike.
Property Information Form: Third Edition
When the Property Information Form (TA6) was revised in 2013, it was drafted to include a question about the plant. Now, as sellers and their conveyancers will know, at question 7.8 it states the following:
“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?”
The choice of answers a seller can select are ‘yes’, ‘no’ and ‘not known’. It is at this point, the actual worth of raising this specific question can be debated.
For the vast majority of sellers, the selected response will be ‘no’. But, there is a very marked different between a categoric ‘no’ based on a certain level of understanding, and merely stating ‘no’ because it has not yet been encountered by the vendor.
Any representation about a property can of course have legal repercussions if the information is intentionally misguiding. If representing a seller there is very little you can do if this is the case, but
what can be done to ensure that clients are not making firm assertions without sufficient knowledge?
To avoid such uncertainty it could be advised that seller should add a caveat along the lines of: ‘as far as I am aware’ to a response of ‘no’. This stems from how the plant can be hard to spot in its early stages. After all, most property owners are not horticultural experts.
This response can serve to trigger alarm bells when reviewed by the purchaser’s solicitors. A request, via an enquiry, is likely to be made for further information and perhaps a specialist survey .
Indeed, this emphasises the issue with the current structuring of the question on the form currently. The ‘not known’ answer is arguably the most honest for the majority of sellers, but in reality it serves only to prompt the buyer’s solicitors to probe for further information.
From a sales perspective, it may be advisable to seek clarification from the client when reviewing the Protocol Documents if this response is selected. Again, a caveat along the lines of ‘buyer should rely on their own survey’ is to be recommended.
If this is the case, however, it is difficult to see just how the form has helped clarify matters at all from the perspective of clients or solicitors at the onset of a transaction.
From a conveyancing perspective this is clearly the most straightforward response. If representing the vendor, it is imperative to ensure the client has taken action. A specialist contractor will be required to treat the affected areas, with the form requesting a copy of the management plan detailing the record of works carried out.
Sellers should provide this to the purchaser’s solicitors, who in turn should enquire to see if it can be transferred to their client and whether or not it is backed by insurance.
Of course, if representing a purchaser the lender cannot be ignored. The presence of Knotweed does not automatically prevent a mortgage from being obtained, with a case by case basis approach often adopted. Evidence of treatment is once again key, as is ensuring remediation works have an insurance backed guarantee.
The presence of the plant at neighbouring properties has also deterred certain lenders, but note this is not something the seller is required to disclose on the Property Information Form. This again limits the value of the form in this particular area, with once again buyers directed towards ‘their own searches’.
A case for change?
By including Japanese Knotweed in the TA6, its potentially devastating impact is at least being acknowledged. As things stand, it is perhaps not addressing the issue from the right angle.
A simple amendment to create a choice of ‘yes’ or ‘not as far as I’m aware’ would reduce ambiguity. Property owners who are aware of it affecting their property would benefit from transparency, which is a clear strong point of the form. But those who are not aware, would not have to make assertions about the presence of a plant that they perhaps are not qualified to make.
MJP Conveyancing are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877067 or via email at firstname.lastname@example.org