Seller faces £225K liability for failure to disclose Japanese Knotweed

The need to exercise caution when responding to the pre-sale question of whether you are aware of the presence of Japanese Knotweed has never been more important as can be seen from the following case as reported in the Metro on the 25 January 2023. 

 

In January 2023 a furniture designer successfully sued the seller of a £700,000 house he bought after he found Japanese knotweed in the garden, a court heard.

 

Jonathan Downing bought the home from chartered accountant Jeremy Henderson in August 2018.

 

While tidying the home’s garden in London just after he moved in Mr Downing discovered the knotweed.

 

Mr Downing then sued Mr Henderson for £32,000 for failing to disclose there was knotweed when he sold the home.

 

Mr Henderson answered ‘no’ to the question on the TA6 property information form asking if the property had been affected by knotweed and claimed he couldn’t see it because of a large bush.

 

Mr Downing said if Mr Henderson had filled out ‘not known’ on the form instead, he could have investigated the matter further.

 

But there was evidence presented in court that the knotweed stood at least two metres tall at one point and was treated with herbicide.

 

At Central London County Court, Mr Downing’s barrister Tom Carter said the knotweed had been in the garden since 2012.

 

Mr Henderson had moved in during 2015 and then sold the house to Mr Downing in 2018.

 

Mr Henderson told the court: ‘I had lived there for three years and spent quite a lot of time in the garden and hadn’t seen knotweed.

 

‘I got a surveyor’s report when I moved in and it didn’t find any knotweed.

 

‘No one identified any knotweed to me and I didn’t see any knotweed.’

 

But Judge Luba said: ‘Everything turns on the specific facts of the act of representation and its individual circumstances.

 

‘Mr Henderson told me on oath that he genuinely did think there wasn’t any Japanese knotweed in his garden. He knew what it looked like and he had not seen any in the three years he had been there. His mother was a keen gardener and she made no report to him of Japanese knotweed.

 

‘No previous owners had mentioned Japanese knotweed to him and none of the neighbours had Japanese knotweed in their gardens.

 

‘Had that evidence stood alone, he would have amply satisfied me of his reasonable belief that there was no Japanese knotweed at his property.’

 

But the judge said evidence from an expert hampered Mr Henderson’s claim because the evidence suggests it once stood two metres tall and was treated with herbicide.

 

I ask myself whether Mr Henderson genuinely did believe there was no Japanese knotweed affecting the property. I’m not satisfied he has met that burden,’ Judge Luba added.

 

Mr Henderson must now pay £32,000 damages and Mr Downing’s lawyers bills of up to £95,000, as well as his own costs, estimated at almost £100,000.

 

He was ordered to pay the damages plus £65,000 costs on account within 21 days.

 

What is Japanese Knotweed?

 

Japanese knotweed is a species of plant that has bamboo-like stems and small white flowers.

 

Native to Japan, the plant is considered an invasive species. 

 

Although it rarely sets seed in this country, Japanese knotweed can sprout from very small sections of rhizomes. 

 

Under the provisions made within Schedule 9 of the Wildlife and Countryside Act 1981, it is an offence to cause Japanese knotweed to grow in the wild.

 

The invasive root system and strong growth can damage concrete foundations, buildings, flood defences, roads, paving, retaining walls and architectural sites. It can also reduce the capacity of channels in flood defences to carry water.

 

Avoiding pests, diseases, and weeds by good practice in cultivation methods, cultivar selection, garden hygiene, and encouraging or introducing natural enemies should be the first line of control.

 

If chemical controls are used, they should be used only in a minimal and highly targeted manner. For example, where pests, diseases or weeds pose a serious threat to the wider environment, to important heritage specimens, to habitat, or to native wildlife.