Jeremy Henderson, a south-London accountant, has been hit with a huge legal bill after selling his former home knowing (but not disclosing) that part of the garden was infested with Japanese knotweed. The former owner sold the property in Raynes Park to furniture designer Jonathan Downing for £700,000 in August, 2018. After buying the three-bedroom terraced property Mr Downing planned to build a workshop at the bottom of the garden, and it was whilst clearing an area behind a shed that he discovered the highly invasive knotweed plants.
Japanese knotweed is a virulent species that spreads rapidly and can quickly cause damage to buildings, roads and underground pipework. The plant has bamboo-like stems which can grow to around 2.1 metres in height, and produces small white flowers. Often found on derelict land, Japanese knotweed can grow up to 10cm a day in the summer months, and can regrow from a fragment as small as a thumbnail in size. The plant often spreads unseen via an underground network of stems and shoots which can lay dormant for many years. Consequently, getting rid of the plant can be very difficult and costly, requiring return site visits over several years and controlled disposal of the waste. Until recently, obtaining a mortgage on a property affected by Japanese knotweed was very difficult, and it was said that knotweed infestation could reduce the value of a property by 5%-15%. Mortgages are easier to obtain these days, particularly if the plant has not come within 7m of the property, this being the accepted maximum distance that shoots could travel underground.
Japanese knotweed is legally classed as a controlled plant under the Wildlife and Countryside Act 1981. It is not illegal for the plant to be growing on your property, but it is against UK law to allow it to spread into the wild. In 2014 additional laws were added to pre-existing Anti-Social Behaviour Orders, giving local authorities and the police the power to issue Community Protection Notices to prevent the negligent cultivation of Japanese knotweed. Homeowners failing to control the plant on their property can be fined up to £2500. Further legislation under the Environmental Protection Act 1990 sets out how to dispose of controlled waste, including soil or plant material contaminated with Japanese knotweed. Offenders under this Act can be liable to a fine of £5000 and/or 6 months in prison. Conviction in more serious cases may lead to a two year jail sentence and/or an unlimited fine.
It is not illegal to sell a property which has Japanese knotweed growing on it, but failure to disclose this may lead to complications with mortgage offers, delays while knotweed surveys are carried out, as well as the time and cost required to begin removing the infestation. Some prospective purchasers may pull out altogether once they learn of the existence of knotweed. Estate Agents must declare the presence of Japanese knotweed on a property in order to act within Consumer Protection Regulations, and failure to do so could result in them being barred from the profession. In most property conveyances, the buyer’s solicitor will ask for a completed TA6 form from the vendor. This form covers the condition of the property for sale and includes a declaration as to whether it has been affected by Japanese knotweed. The vendor must choose from three options: Yes, No or Not Known.
In the case before Central London County Court the defendant, Mr Henderson, claimed to have been unaware of any Japanese knotweed growing in his garden during the three year period when he owned the property. He stated “No” on his TA6 form when asked if the property was affected by the plant. However, Judge Luba said that although Mr Henderson claimed that he had seen no evidence of knotweed on his or his neighbour’s property, expert evidence presented by the claimant showed that it had already been present three years before Mr Henderson had moved in. It had at one time stood over two metres high and had previously been treated with herbicide. Had Mr Henderson stated “Not Known” to the question of whether knotweed was present on the property the onus would then have shifted to the purchaser, Mr Downing, to commission a knotweed survey to satisfy himself. Judge Luba decided in favour of the claimant, Mr Downing, concluding that he was not satisfied that “Mr Henderson genuinely did believe there was no Japanese knotweed affecting the property.”
Judge Luba ordered Mr Henderson to pay £32,000 in damages, as well as Mr Downing’s legal costs of up to £95,000. He is also liable for his own legal costs of around £100,000.
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