Knotweed when selling
In recent years, there has been an increasing number of claims arising out misleading information given by sellers to the buyers of their property.
Following a recent decision of the Court of Appeal, sellers must pay yet closer attention to the information they provide, and specifically the Japanese knotweed section on the Law Society’s Property Information Form after a Court of Appeal decision in July 2018.
Neighbours Stephen Williams and Robin Waistell, who own adjoining semi-detached bungalows in South Wales, issued private nuisance claims in 2015 against Network Rail, arguing that the Japanese knotweed on its land encroached on their properties and interfered with their quiet enjoyment of, and caused a loss of amenity in respect of, their properties by reducing their market value. Knotweed is notorious for its fast growth, through its underground roots or rhizomes. It can block drains, grow between slabs of concrete drives, disrupt brick paving, undermine garden walls, and overwhelm outbuildings and conservatories, as well as being difficult to eradicate.
In a judgment handed down in February 2017, the Recorder in the Cardiff County Court found that Network Rail’s breach of duty had caused a continuing nuisance and damage, but the decision was appealed to the Court of Appeal. It upheld the Recorder’s February 2017 decision, but for different reasons.
Sir Terence Etherton, the Master of the Rolls, said the Recorder had been wrong in principle to conclude that the presence of knotweed on Network Rail’s land within seven metres of the Claimants’ properties was an actionable nuisance “simply because it diminished the market value of the Claimants’ respective properties, because of lender caution in such situations”. He also said that the purpose of the tort of nuisance “is not to protect the value of the property as an investment or a financial asset”. But he disagreed with the Recorder’s decision to reject the claim in nuisance based on the spread of the knotweed rhizomes on the Claimants’ properties. His view was that Japanese knotweed and its rhizomes can be described as a “natural hazard”, which can “affect the owner’s ability fully to use and enjoy the land. They are a classic example of an interference with the amenity value of the land”.
The Law Society’s TA6 Property Information Form requires sellers to state whether the property is affected by Japanese knotweed. If a vendor untruthfully answers “no” or “don’t know”, when they are aware of the presence of knotweed, they risk their buyer coming back at some stage in the future, and the potential of a claim either to rescind the contract completely, or to claim damages on the basis that the property is worth less than they thought. The judgment therefore reinforces once more how vital it is that sellers give accurate and truthful answers to questions raised of them in the conveyancing process.
If you need any further information about any concerns about claims of this type, please feel free to contact Christopher Pugh of this firm by email at email@example.com or on .
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