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.
‘No’
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.
‘Not known’
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.
‘Yes’
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 david@mjpconveyancing.com
