Japanese knotweed misrepresentation lands seller £200k bill

Japanese knotweed misrepresentation lands seller £200k bill

A seller who misrepresented the presence of Japanese knotweed on their £700,000 London property has been successfully sued for over £200,000.

41-year-old accountant Jeremy Henderson sold his Raynes Park property to 30-year-old furniture designer Jonathan Downing in 2018.

Henderson stated at the time that there was no Japanese knotweed on the property. Downing, having planned to build a workshop in the back garden, subsequently discovered knotweed canes behind a bush next to a shed in said garden.

Downing subsequently sued the seller for misrepresentation. Defending his answer of “No” to the question regarding knotweed on the TA6 form, Henderson stated he reasonably believed there was no knotweed as it could not be seen behind the bush, adding that the bush had also stunted its growth prior to being cut back by Downing.

Yet, expert evidence suggested that the knotweed – which was estimated to have been present in the garden going back as far as 2012 – may previously have been treated with herbicide, and could even have once grown up to two metres in height.

“The defendant could have ticked ‘Yes’, ‘Not Known’ or ‘No’ – by ticking ‘No’, the defendant chose to positively assert there was no knotweed at the property and thereby made a misrepresentation,” said Tom Carter, Downing’s barrister.

Yet, defending his “reasonable belief”, Henderson said:

“I had lived there for three years and spent quite a lot of time in the garden and hadn’t seen knotweed.

I got a surveyor’s report when I moved in and it didn’t find any knotweed. No one identified any knotweed to me and I didn’t see any knotweed.”

Judge Jan Luba KC said:

“Mr Henderson told me on oath that he genuinely did think there wasn’t any Japanese knotweed in his garden. He knew what it looked like and he had not seen any in the three years he had been there. His mother was a keen gardener and she made no report to him of Japanese knotweed.

No previous owners had mentioned Japanese knotweed to him and none of the neighbours had Japanese knotweed in their gardens.

Had that evidence stood alone, he would have amply satisfied me of his reasonable belief that there was no Japanese knotweed at his property.”

However, in throwing out Henderson’s defence and awarding damages to Downing of over £200,000, Luba J said Henderson’s story was undermined by his admission that he “didn’t know what was behind the shed”, as well as the expert evidence that had been provided to the court.

Nic Seal, Founder and MD of invasive plant specialist Environet, said that in order to answer “No” to the TA6’s Knotweed question, the seller “must be certain the property is not affected, including rhizome beneath the ground and within three metres of the boundary”. She continued:

“A cursory glance around the garden by an untrained eye is not sufficient. Knotweed dies back during the winter months and can even lie dormant beneath the ground for up to 20 years with no sign of growth. It also takes on a completely new appearance if chemicals have been applied in an attempt to kill it, making it harder to recognise.

It’s the seller’s duty to determine if their property is affected by knotweed. It might be tempting to cross your fingers and hope for the best, but if it later arises and the buyer sues, you’ll be liable for diminution of the value of the property and legal costs, which can amount to hundreds of thousands of pounds. The only way to confidently state that a property is unaffected is to commission a professional knotweed survey, backed by a warranty.”

Jamie Lennox, Editor, Today's Conveyancer

Editor of Today's Conveyancer, Today's Wills and Probate, and Today's Family Lawyer Contact LinkedIn Twitter Email

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