John Gorner, Consultant Solicitor, Dispute Resolution, offers homeowners advice on Japanese knotweed following a landmark ruling in England.
For the vast majority of homeowners, Japanese knotweed might be a distant menace – something they’ve heard horror stories of but never encountered themselves. For those unlucky enough to have discovered the presence of the invasive species on their land, it can be a legislative and financial nightmare.
Japanese knotweed, an aggressive plant brought to England in the Victorian era, grows rapidly and has the potential to destroy man-made and natural structures in its path. It is able to grow through cracks in concrete and undermine the structural integrity of buildings and homes and is estimated to be present in every 10km2 of the British Isles.
This is such a problem, and on a national scale, that the Government website has a whole section devoted to the issue: https://www.gov.uk/guidance/prevent-japanese-knotweed-from-spreading
As the Government website says:
“You must stop Japanese knotweed on your land from spreading off your property. Soil or plant material contaminated with non-native and invasive plants like Japanese knotweed can cause ecological damage and may be classified as controlled waste.
You do not legally have to remove Japanese knotweed from your land unless it’s causing a nuisance, but you can be prosecuted for causing it to spread into the wild.”
A recent landmark ruling in England has once again made the weed headline news. The Court of Appeal ruled that homeowner Marc Davies could recover damages from Bridgend Council in South Wales for the stigma attached to his house, even after the plant itself had been eradicated.
This is a significant decision because the Court recognised that even after successful treatment by a specialist contractor and with a guarantee put in place, there was still the potential for a diminution in the value of the property.
The “knotweed stigma” may well see future buyers offering to pay less for the property, or as in this case, it might prevent the owner from carrying out improvement works such as landscaping or building works in the garden which would otherwise increase the value of the property.
We anticipate that this case may open the floodgates for similar claims across England and Wales. It’s not just local authorities that need to take heed, but private homeowners too. The case indicates that extra care should be taken when dealing with knotweed and any property that has either been affected by knotweed, or that neighbours a property or land that has been affected.
If you have knotweed, you should talk to a lawyer as well as a horticultural expert from the outset. And if you have knotweed and you’re in the process of selling your property, absolute transparency is key. Sellers have a responsibility to complete a Property Information Form (TA6), which will specifically ask questions about knotweed in the section on environmental matters.
Failure to report it or deliberately conceal Japanese knotweed could lead to sellers being sued for misrepresentation or non-disclosure and liable for damages i.e., compensation – which now could include the cost of “stigma” in addition to the treatment costs.
When it comes to mortgage lenders, they may well be interested as the presence of knotweed may have implications for them.
Never be tempted to just tick the box saying “no”. Forms have great effect, and as such, should be filled in with great care. I acted for a client who had failed to disclose the presence of knotweed and can speak from experience when I say it could be an expensive mistake. If in doubt take advice and discuss the matter with your solicitor.
For homeowners with no intention of selling, they should still be aware that failure to deal with Japanese knotweed could void any claims for building damage as well as leaving them exposed to a liability claim from a neighbouring property – which again, could now result in more hefty claims than we have seen previously.
If people take anything away from the recent landmark court ruling, it should be this: beware of the consequences of buying, selling and owning a property. If you’re ever uncertain about how to handle a knotweed situation, speak to a lawyer.
For most people, their house will be the single biggest asset they own. People need to get used to spending a little more money on legal costs to prevent a potentially huge expense further down the line.
Get in Touch
If you require advice regarding Japanese knotweed and would like to speak to one of our property dispute specialists, please call us on 0161 969 3131 or fill in our confidential contact form. One of the team will be in touch at the earliest opportunity.