Weeding out property sale issues

A recent case in the Central London County Court has highlighted the need to take care, and where necessary legal advice, when completing the initial information forms when selling a property. The case related to the presence of Japanese Knotweed at the property being sold.

In Downing v Henderson (2023), the buyer purchased the property in London in 2018. He intended to build a workshop in the garden. However, whilst he was tidying the garden, he discovered Japanese Knotweed behind the shed.

Japanese Knotweed is a specifies of plant native to Japan. In the 1800s the plant was brought to Britain to be used as an ornamental garden plant. It was soon discovered that the plant is invasive and strong. If left unchecked the plant can cause serious damage to buildings.

In the property information form, there is a question asking whether the property is affected by Japanese Knotweed. Sellers can answer either “Yes”, “No” or “Not Known”. The seller answered “No”. Upon discovering the plant, the buyer made a claim against the seller for misrepresentation. The buyer sought compensation for the cost of excavating the plant, and for any adverse effect the presence of the plant may have on the value of the property.

The seller claimed that he “reasonably believed” that he was telling the truth. He checked the property information form he received when he purchased the property which also indicated that the property was not affected by Japanese Knotweed. Also, when he purchased the property, he commissioned a survey which also did not reveal the presence of Japanese Knotweed.

However, during the trial, evidence from a Japanese Knotweed expert suggested that the plant possibly reached two metres in height at one stage. There was also evidence that the plant had been treated with herbicide in the past. This therefore casted doubt on the seller being unaware of the presence of the plant.

The Court found in favour of the buyer. The seller has been ordered to pay over £200,000 in damages to the buyer and legal fees.

By answering “No” to the question in the property information form the seller was warranting to the buyer that there was no Japanese Knotweed at the property. The seller was not an expert in the field of Japanese Knotweed and was therefore not qualified to give any such assurance. He should therefore have answered “Not known” to the question.

In contrast to cases where the plant has been concealed, a further recent case has determined that damages for loss of value to a property may still be awarded, even if Japanese Knotweed has been treated. Although the award for loss of value in Davies v Bridgend County Borough Council ([2023] EWCA Civ 80) was relatively modest, the Court of Appeal established (for the time being) that damages for loss of value may still be recoverable even where Japanese Knotweed has been treated and eradicated owing to the perceived ‘stigma’ attached to a property.

Our residential property team can guide you through the process of selling your property, including how to deal with any enquiries that you may not know how to respond to. Please contact Caroline Walton or a member of her team on 01258 459361.