The Dangers Of Knotweed For All: The Lesson From Downing v Henderson (2023)
Japanese knotweed (‘Reynouria Japonica’) is perennial weed with hollows stems and wide leaves which grows extremely quickly and is difficult to control or destroy. It is the nightmare for most homeowners and neighbours.
Problems with Japanese Knotweed
There is a growing awareness about the dangers of Japanese knotweed. Adjoining owners can be sued for nuisance (from the encroachment of the weed) – see our blog on the case of Network Rail Infrastructure Limited v Williams and Waistell (2018).
The more recent illustration of this was the widely reported case of Mr Clark and Ms Kaye in June 2022 where they bought a successful claim against their neighbours for an award of £250,000 for the damages caused to their £1,600,000 house.
Lenders may not provide borrowings if the existence of Japanese knotweed is discovered within a certain radius.
Surveyors can be sued in professional negligence if they failed to identify the presence of Japanese knotweed.
It is so important that when property owners are selling a house, there is a specific question asked on the Property Sellers Information Form (TA6 form) about the existence of Japanese Knotweed. If you knowingly answer the question in the negative, then potentially you could be sued for misrepresentation by the buyer.
What is Misrepresentation?
Misrepresentation is an untrue statement of fact or law made by one party to another which induces them to enter the contract thereby causing loss. There are three types of misrepresentation: fraudulent, negligent and innocent.
The most common type of is negligent misrepresentation. A claim for negligent misrepresentation is based on the Misrepresentation Act 1967 and arises where a statement is made by one contracting party to another carelessly or without reasonable grounds for believing its truth. An illustration of how this can go wrong came up in the recent case of Downing v Henderson (2023).
Downing v Henderson (2023)
Mr Downing was buying a property worth £700,000 from Mr Henderson in 2018. Mr Henderson had confirmed in the TA6 form that the property was not affected by Japanese knotweed. Mr Downing subsequently found Japanese knotweed in the garden. Mr Henderson said he had lived in the property for 3 years and was not aware of and had not been made aware of the existence of the weed.
This was unfortunately not enough to satisfy the judge who relied on expert evidence used for Mr Downing confirming that the weed had at one point stood two metres tall and been treated with herbicide.
Mr Henderson was ordered to pay damages of £32,000 (covering the diminution in value and costs of investigating and excavating the weed) and costs of £95,000 for his misrepresentation.
Words of Warning
Whilst the dangers of Japanese knotweed are well known, it will make matters much worst to just try and hide it from lenders, surveyors, buyers or your neighbours.
Having a Knotweed Management Plan to control the growth and spread of the weed is paramount, as well as having appropriate insurance in place.