Lorraine’s Friday Tips For Conveyancers #3 The Knotty Problem of Knotweed

Conveyancers will be all too aware of the problems relating to Japanese knotweed when acting for the buyer of a property.  Japanese knotweed is a non-native, invasive plant which is fast growing in spring and summer.  It can cause significant damage to a property and is extremely difficult to eradicate.  Householders should not attempt to remedy a problem of Japanese knotweed on their own.  The successful eradication of Japanese knotweed will involve an extensive, insurance backed treatment plan provided by a specialist firm.

Many practitioners will be aware of the 2018 Court of Appeal decision in the Network Rail case.  The presence of knotweed on a property can adversely affect a neighbouring property if the plant is left unchecked.  If knotweed does spread onto neighbouring land, this can give rise to an action in the tort of nuisance on the basis that it can affect the landowner’s ability to fully enjoy and use their land.  This results in an interference with the amenity value of that land and could be actionable.

Sellers should therefore be aware of this risk if knotweed is on their land - allowing the plant to go unchecked could result in an action from a neighbouring landowner.  The more immediate problem for a seller is that the presence of knotweed is likely to impact on a sale of the property; if not render it completely unsaleable. 

Conveyancers no doubt make their buyers aware of the risks of the presence of knotweed on a property being purchased – it could result in a buyer not being able to secure mortgage financing.

So far so good.  But have you considered the Law Society’s updated guidance to the Property Information Form (PIF)?  The Law Society issued a new PIF and guidance in February 2020. 

Question 7 on the PIF deals with environmental matters including Japanese knotweed.  The PIF question itself has not changed but what should be of concern to conveyancers is the guidance to the PIF provided by the Law Society.  In its guidance the Law Society urges a seller to indicate ‘not known’ in response to the question on Japanese knotweed if the seller cannot be certain as to whether or not the property is affected.  The Law Society goes on to tell sellers that if they state ‘no’ as their chosen answer, the seller must be certain ( Law Society’s emphasis) that no rhizome (root) is present in the ground of the property (or within 3m of the property boundary) even if there are no visible signs above ground.

Note that the seller is expected to know if the knotweed has encroached or is growing on neighbouring property.

This is a very high bar indeed.  It is likely to cause more sellers to indicate ‘not known’ to question 7 and thus seems to firmly place the onus of establishing the presence or otherwise of Japanese knotweed on to the buyer.

This new guidance raises certain issues which conveyancers should consider and advise upon:

·         Do you provide the Law Society’s guidance to the PIF as a matter of course when sending the PIF to your seller clients? 

·         At the very least, do you bring the seller’s attention to the Law Society’s guidance in relation to Japanese knotweed?

·         Do you point out that there can be a problem with knotweed even if it is on neighbouring property?

·         Do you carefully consider the response to the PIF when acting for the buyer?  Do you raise further enquiries as to the seller’s level of knowledge about the presence of knotweed on the property if they indicate ‘not known’?

·         When acting for a buyer, do you give advice in every purchase report on the dangers of Japanese knotweed?

·         If the seller has indicated ‘not known’ on the PIF, do you advise your buyer that the seller cannot be certain as to the presence of knotweed on the property (or neighbouring property)  and thus the buyer should consider having a specialist knotweed report carried out in addition to any survey?

·         If the seller has indicated ‘not known’ on the PIF, do you consider reporting this to the lender on the basis that the seller is uncertain as to the presence of knotweed on the property?

·         Do you remind clients that knotweed may not be visible during the winter months?

·         Have you explored the availability of indemnity insurance products?  There are policies available which will cover the cost of treatment and reports if knotweed is subsequently discovered at the property following a ‘no’ or ‘not known’ response from the seller on the PIF.

Whilst Japanese knotweed thus creates a very real and practical problem for both sellers and buyers, in the light of the Law Society advice on the PIF, it is a risk which also should not be ignored by their conveyancers in terms of advice given.