Thu 26 Oct 2017 by Lorraine Imhoff
Any conveyancer, estate agent, buyer, seller or lender that has ever encountered the presence of Japanese Knotweed will know that it can significantly impede the conveyancing process.
Japanese Knotweed is a highly destructive plant that can grow through concrete. According to the Environment Agency is now prevalent in the UK, although exact statistics are impossible to source. Indeed there are no conveyancing or environmental searches that address Japanese Knotweed.
The implications of Japanese Knotweed are serious; Lenders may not lend and Insurers may not insure, such is the level of potential damage that this plant can inflict on property footings and drainage systems.
Property vendors must disclose the presence of the plant if known, but purchasers are better advised to take out a RICS Home Buyers Survey before exchanging as surveyors are trained to identify the plant. Moreover, if they fail to do so, surveyors face the very real risk of a negligence claim.
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The Japanese Knotweed problem has been around for a number of years yet its absence from the standard conveyancing protocol forms has added to the number of ‘Additional Enquiries’ that buyers solicitors have routinely had to ask.
‘Additional Enquiries’ are effectively a second round of questions following the initial standard questions asked of the seller. In moving this, and a number of other increasingly common questions, such as details of solar panels, onto the standard Properly Information Form, there will be a potential saving in time.
The form states that: “Japanese Knotweed is an invasive plant that can case damage to property. It can take several years to eradicate."
It then asks sellers; “is the property affected by Japanese Knotweed?” – Yes/No or Not Known.
This question is, on face value innocuous. However if a seller, based on the best of their knowledge, answers ‘No’, and it subsequently transpires that the plant is present, then the buyer may pursue the seller for compensation.
Sellers can (and may be better advised to) answer ‘not known’ although the buyer may perceive that the seller is hiding something.
Alternatively the seller might choose to answer no but add the following caveat (or similar) to their answer:
"No. However no warranty is given in this regard and it is recommended that the buyer instruct a suitable Home Buyers Survey to provide an accurate answer to this question)".
We would therefore strongly advise that sellers completing the TA6 (or any other conveyancing form) consult with their solicitor when in doubt.
In any event buyers are always best advised to commission a survey.
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