Japanese knotweed is a highly invasive plant which can cause significant property damage.
In the recent case of Downing v Henderson, Mr. Downing purchased a £700,000 property from Mr. Henderson. After completing the purchase, Mr. Downing discovered Japanese Knotweed growing in the garden. Mr. Downing brought proceedings against Mr. Henderson in misrepresentation. This was because on the Property Information Form, which is the standard form completed by a seller during the conveyancing process, Mr. Henderson answered “No” to the question as to whether the property was affected by Japanese Knotweed instead of “Yes” or “Not Known”.
By answering “No”, Mr. Downing had effectively made a positive statement that there was no Japanese Knotweed at the property.
Even though Mr. Henderson argued that he reasonably believed he was telling the truth when he filled in the form as he could not see any Japanese Knotweed, the judge found in favour of Mr. Downing.
Expert evidence had shown that the Japanese Knotweed had previously stood up to 2 metres tall and there was evidence that it had been treated with herbicide. Accordingly, the judge found that Mr. Henderson would reasonably have known about the Japanese Knotweed. Mr. Henderson was ordered to pay £32,000 in damages to Mr. Downing to cover the cost of removing the weed and for the reduction in value of the property caused by the Japanese Knotweed. Mr. Henderson was also ordered to pay Mr. Downing’s legal costs of up to £95,000. Mr. Henderson would also have been responsible for his own legal costs.
It is very clear that if a seller is not sure whether their property is or has been affected by Japanese Knotweed in the past, they should tick “Not Known” on the Property Information Form. A seller should only answer “No” if they are certain that there is no Japanese Knotweed on the property.
Clearly, it would be better to be cautious and careful in answering this question in view of the above decision.
In any event, potential buyers should consider having a survey carried out including in the garden to satisfy themselves regarding this invasive and destructive plant.
A further recent case handed down by the Court of Appeal called Davies v. Bridgend County Borough Council (2023) E W C A Civ. 80, involved a homeowner in South Wales who discovered Japanese Knotweed on his property in 2017 but failed to take steps to remove the Japanese Knotweed until some years later. It was accepted that the homeowner breached his duties to neighbouring properties in nuisance who managed to recover the reduction in value of land caused by the encroachment.
Should you require any further information regarding claims of misrepresentation relating to Japanese Knotweed, please do not hesitate to contact our Mr. Bill Dhariwal, Director and Solicitor on DDI: 01489 864 117 or Email: bill.dhariwal@lawcomm.co.uk
