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Japanese Knotweed - When All Else Fails

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This is a guest post by leading Japanese Knotweed litigation expert Rodger Burnett of Charles Lyndon Solicitors

We have covered the problem of Japanese Knotweed in a context before here and here, but what happens when your home is devalued or the cause is neighbouring property? What are your options? Can you sue anyone?

Rodger Burnett explains the options...

Buying a property and discovering it is affected by knotweed.

Fairy tales can quickly be shattered when you move into your dream house and then discover knotweed has already made its home there.

Aside from the damage knotweed can cause to your property, its disposal can also cause you great expense, not to mention the decrease in value it can have on the property itself.

Unfortunately, knotweed is not something you can simply take a garden strimmer to, bag up and happily forget about after depositing in the local dump.  There are typically two types of treatment for knotweed; herbicide or excavation.  Both types of treatment will cost in the thousands and so quite rightly, you will be looking to someone else to meet this cost, rather than foot the unexpected bill yourself.

"Unfortunately, knotweed is not something you can simply take a garden strimmer to, bag up and happily forget about after depositing in the local dump."

It may be possible that you can bring a claim for damages for the loss of value to your property (which in many instances will be considerably more than the cost of removing the knotweed).  This can be against the seller of the property and/or your surveyor.

When a seller sells a property, they should complete a Property Information Form (TA6).  There is a specific question within the form that asks if the property is affected by knotweed and a seller has the choice of ticking, ‘yes’, ‘no’ or ‘don’t know’.  If a seller ticks ‘no’ or ‘don’t know’, but it can be proven that they did know of the presence of the knotweed, or were reckless as to their knowledge of whether it was there or not, then a claim can be brought against them for misrepresentation.

Establishing that a seller was aware of the knotweed can be done in many ways, such as providing evidence of previous attempts to manage the knotweed, like cutting it down, or perhaps through witness statements from neighbours. In many cases, its presence alone can be enough to bring a claim if it is proven that it was there at the time of sale (this is done by obtaining an expert survey from a knotweed specialist) and if a seller has not taken any steps to identify what it was before completing the TA6.

Claims are often now brought against surveyors who have inspected a property prior to its purchase. Surveyors have been issued with specific guidance, which tells them to look for knotweed when they inspect a property; this includes looking in neighbours’ gardens. Therefore, if it can be proven that knotweed was present, but a surveyor did not spot it, then a claim can be brought against them for professional negligence and or breach of contract.

Trying to sell a property affected by knotweed.

The situation can be just as dire for someone who wishes to sell their property, but is struggling due to the presence of untreated knotweed on a neighbouring property.  Even if you can find a buyer willing to purchase the property, many mortgage lenders will not lend against knotweed affected properties.

"Even if you can find a buyer willing to purchase the property, many mortgage lenders will not lend against knotweed affected properties"

In this situation, the relevant area of law that can come to your rescue is private nuisance.  A private nuisance is an act or omission, which is an interference, disturbance of or annoyance to a person in the exercise or enjoyment of his/her ownership or occupancy of land.  So, in the case of knotweed a neighbour can be forced under the law of nuisance to effectively treat the knotweed on their land.  The law of private nuisance can also be used where knotweed from a neighbouring property has encroached onto your property.

In order to bring a successful case against your neighbour, they must first have knowledge of the encroachment or the likelihood of an encroachment and have an opportunity to address it. So, it is important that as soon as you become aware of the problem, you write to your neighbour advising them of it and asking them to take appropriate steps to treat the knotweed.

One would hope that matters can be resolved amicably, but if not, then legal action can be commenced against the owner of the property where the knotweed is coming from claiming damages for loss of value to your property and or an injunction forcing your neighbour to carry out specific treatment.

If you have had problems with knotweed either during the sale or purchase of a property please contact Dorothea Antzoulatos or Donna Dewberry at Charles Lyndon (0207 167 4850).

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