The process of buying a home is fraught with hazards and potential pitfalls, in fact there are so many that it can be easy to overlook a small patch of vegetation in the corner of a garden, or a seemingly irrelevant question on a TA6 property form.
Unfortunately, it’s often the case that sellers, vendors and even estate agents will attempt to hide, downplay or outright lie about the presence of Japanese knotweed on a property in order to get a sale pushed through and cash in the bank.
Discovering Japanese knotweed on a house that you’ve just bought is not a pleasant surprise and it’s one that can cause a serious amount of anxiety. Even more worrying is discovering a knotweed infestation months, or even years, after moving house: finding the root of the problem can be difficult, let alone chasing down the individuals who have misled you into buying an infested property.
If you’ve found Japanese knotweed on a property that you’ve just bought then it’s imperative that you take action as soon as possible, so that you can find the source of the infestation and determine whether or not you have been lied to or misled in the lead up to the purchase of the property.
Should the Japanese knotweed have been declared on the TA6 property information form?
Whether or not the Japanese knotweed should have been declared depends on how you’ve purchased the property.
If you’ve bought your house through the usual conveyancing protocol then it’s likely that the seller would have had to complete a TA6 property form in the lead up to the sale.
This is a legally binding document; lying on it can lead to lawsuits and there is a specific question that relates to Japanese knotweed. This is the seller’s opportunity to give full disclosure about the infestation, should they choose to lie about their knowledge of the knotweed then you may be able to sue them for the cost of treatment and damages relating to the drop in the value of the property.
The seller lied about the Japanese knotweed on the TA6 Property form
There is a specific question on The Law Society’s Property Information Form which relates to the seller’s knowledge of Japanese knotweed on their property.
The question requires the seller to say whether the property they are selling is ‘affected by Japanese knotweed’ and gives three options as answers: ‘yes’, ‘no’ and ‘not known’. Should knotweed be found on the property after the seller has selected ‘no’ or ‘not known’, then you may be able to pursue a claim for compensation against them.
They will be proven to have made a fraudulent misrepresentation if it can be proved that they ought to have not known about the presence, or in the case where they had no reasonable grounds for believing the property was affected by knotweed.
For example, a seller can not claim that they aren’t aware of the Japanese knotweed on their property when their garden is overrun by the plant.
The seller didn’t tell me about the Japanese knotweed – can I claim compensation?
You should be able to claim compensation against buyers who make no attempt to inform you about the extent of the Japanese knotweed infestation.
Japanese knotweed can often damage the value of a home. The severity of the depreciation in value is directly related to the nature of the infestation.
Considering that some mortgage lenders will flat out refuse to lend to property owners who have the plant within 7 metres of their home, it’s unsurprising that so many sellers attempt to hide, lie, or otherwise avoid telling potential buyers about the Japanese knotweed on their property; however, to do so can leave them open to Japanese knotweed legal action.
Can I claim compensation against the previous owner?
If the previous owner of your home has lied to you about their knowledge of Japanes knotweed on the property, or has misrepresented the property by stating that the plant is not on the land, then you may be able to claim compensation for the costs of treating the infestation.
An object to you making a claim for compensation could be losing contact with the previous owner. It’s common for a seller to leave little or no contact details after they’ve sold a property, often because they want to avoid discussing any issues with the home that they’ve avoided mentioning so far. Tracking down the previous owner is an important step in the process of claiming compensation against them.
What happens when the surveyor misses the Japanese knotweed?
In some cases you may have opted for a HomeBuyer report in the lead up to purchasing your property. There are different types of reports and surveys that you can opt for in order to get a deeper understanding of the house you’re intending to buy, but the surveyor, or individual compiling the report, is responsible for spotting and investigating potential Japanese knotweed infestations.
Should you discover Japanese knotweed on a house that you’ve recently bought, after a HomeBuyer report or property survey has said otherwise, then you may have recourse to claim against the persons who undertook that individual or company.
What happens if I bought the property in an auction, before discovering the Japanese knotweed?
Owners of less than desirable property often turn to the auction houses to shift their assets. In some cases, there may be ongoing issues with the neighbours, or the house may be unmortgageable due to a serious Japanese knotweed infestation.
Historically, there has been an assumption of ‘buyer beware’ made regarding properties bought through auction, however this is now an outdated notion. All sellers are legally required to declare the presence of Japanese knotweed, even in the case of an auction sale.
So it follows that if you have purchased a property through an auction, and later discover Japanese knotweed, then you should be able to claim compensation against the previous owner for not disclosing the full nature of the property.
The previous owner told me about the Japanese knotweed after the purchase was complete.
In some cases, whether as an afterthought or in order to deal with a guilty conscience, a seller may choose to inform the buyer of the presence of Japanese knotweed after the sale has gone through.
Doing so is a direct admission that the seller has misled the buyer and possibly misrepresented the property. Any letters or notes left by the previous seller can be used as evidence in a claim for compensation.
What if the seller claimed that they didn’t know about the knotweed?
Claiming no knowledge of the plant is not a defense for misrepresenting a property, or selling land with Japanese knotweed.
All property owners have a responsibility to ensure that they do not encourage the growth of invasive plants such as Japanese knotweed.
Claiming full ignorance of the plant is also impossible to do when a seller is required to fill in a TA6 Property Information Form. The seller cannot use the ‘not known’ answer as a way to explain their ignorance of the plant in general, and therefore their ignorance of if the property is affected by it or not.
In the event where a Japanese knotweed infestation is discovered on a property where the seller has answered ‘not known’ on the TA6 form, this seller can be open to legal action from the buying party if it can be proved that they reasonably should have known about the infestation.
Removal specialists and experts can help investigate the infestation to tell how long the plant has been present and even if herbicide treatment has already been applied, effectively disproving the seller’s feigned ignorance.
How will Japanese knotweed affect my mortgage?
The presence of Japanese knotweed as close as 7 metres to a house can be enough for a mortgage lender to consider you as ‘at risk’.
For years this ‘seven-metre’ rule, put in place by the Royal Institution of Chartered Surveyors, has been used by lenders to refuse mortgages and requests to re-mortgage – however some lenders are now starting to soften their stance on the matter.
Those who have bought a house with Japanese knotweed should not see their situation as hopeless. There are plenty of treatment specialists who can offer plans that are backed by insurance and accreditations, which can reassure lenders and ease mortgage negotiations.
Can I resell my property with the Japanese knotweed?
Although not without its difficulties, it is possible to resell your property with Japanese knotweed.
As time has passed, buyers have become less squeamish when approaching the purchase of a house affected by the plant, especially when the seller has acted transparently and made efforts to put a treatment plan in place.
Setting up an effective treatment plan is not a cheap solution, but will provide potential buyers with the best reassurance that the infestation is being dealt with and will not prove to be an issue that they will have to remedy during their ownership of the property.
What if there’s Japanese knotweed near the house that I bought?
In some cases a seller may choose to not mention that there is Japanese knotweed growing outside the borders of the property, but still nearby.
If you have bought a property with the understanding that Japanese knotweed does not affect the land, but then discover that there is a large infestation growing on the adjacent property then it’s possible that the value of your house is less than you paid for it.
Depending on whose information you were acting on, it may be possible for you to claim compensation against the property surveyor or seller for not fully disclosing the nature of the property.
What happens when I find knotweed on my new build?
Recently, we’ve been in discussions with a buyer from a separate case who has been forced to pay £5,000 in fees to a removals agency, after discovering Japanese knotweed on their new build property.
Before moving in they had asked their conveyancing solicitor to enquire about the presence of knotweed who had neglected to make the relevant investigation. We are currently helping them seek compensation for the solicitor’s negligence.
When should I declare the knotweed on my property?
As a homeowner it is your legal responsibility to prevent any Japanese knotweed on your land spreading onto another person’s property or into the wild.
You are not legally required to remove knotweed from your land, but failing to prevent it spreading onto neighbouring land is an offence.
It’s also an offence to incorrectly dispose of any knotweed material, for these reasons it’s always best to consult a specialist before making any rash decisions that could worsen the problem and leave you in a precarious legal situation.
If either of these cases sound familiar or you’d like guidance on your own Japanese knotweed problem, then don’t hesitate to contact us using the adjacent contact form or call us direct on 07595 653 226.