Japanese knotweed is back in the news – this time the Supreme Court has considered the implications of this plant and its impact on property owners.
Most homeowners have heard of Japanese knotweed. It is an invasive plant and requires active treatment. It usually takes at least three years to treat Japanese knotweed. Knotweed rhizomes (roots) can remain dormant in the soil for many years and will regrow if disturbed or if the soil is relocated. What homeowners must remember is that Japanese knotweed is not the only problematic species of knotweed in the UK – it is just the most common of four invasive knotweed plant species in the UK. These are:
- Japanese knotweed
- Dwarf knotweed
- Giant knotweed
- Bohemian (hybrid) knotweed
There have been a number of legal cases in recent years involving the presence of Japanese knotweed growing on railway sidings and council-owned land. The plant has grown and adjacent property owners whose land has been affected by the plant have brought cases to try to claim compensation for damage to their property due to the presence of Japanese knotweed next door.
A legal claim might be based on a misrepresentation; that is, a property owner not being truthful about whether Japanese knotweed is on their property that someone wants to buy. Another basis for a legal claim is the tort of nuisance.
The courts have been prepared to allow affected property owners to claim damages if they have had to take measures and spend money to treat Japanese knotweed on their land. But what the courts have been more reluctant to do is to allow claims to succeed where the basis of the claim is the just the fact that the adjacent land might be worth less because of the presence of Japanese knotweed next door (known as 'economic loss').
The recent Supreme Court case was decided on a narrow point of law. In essence, the Borough Council on whose land the Japanese knotweed was growing succeeded because the decrease in value of the adjoining land was caused long before the duty of the Borough Council to deal with it arose.
So, it is possible to claim for pure economic loss, but whether it will be successful will depend on the specific facts of the case and when the damage to neighbouring property was caused.
A seller will supply a Property Information Form to the buyer as part of the conveyancing process and this form specifically asks the seller to disclose whether or not they are aware of Japanese knotweed on the property. Of course, a seller may not be aware – so a buyer may wish to consider having a specialist survey carried out. The buyer's conveyancer will not visit their client's property so a buyer should carefully inspect the property that they are buying – including the garden areas and should report any suspicions to their conveyancer. Due diligence at the time of purchase could save thousands of pounds and years of stress.
To discuss this or any other property matter, contact us.