TA6 Japanese knotweed guidance change places onus on buyers
10 February 2020: The Law Society’s amendment to the Explanatory Notes accompanying the TA6 Japanese knotweed question on the conveyancing form will prompt a sharp increase in sellers answering “Not known” to the Japanese knotweed question, placing a new onus on buyers to make their own enquiries into whether a property is affected.
Where previously the guidance simply stated: “The seller should state whether the property is affected by Japanese knotweed”, the revised form and guidance, released on Friday 7th February 2020, states: “The seller should state whether the property is affected by Japanese knotweed. If you are unsure that Japanese knotweed exists above or below ground or whether it has previously been managed on the property, please indicate this as ‘Not known’. If No is chosen as an answer the seller must be certain that no rhizome (root) is present in the ground of the property, or within 3 metres of the property boundary even if there are no visible signs above ground.”
In practical terms, sellers who are not aware of knotweed on their property should no longer answer “No”, instead stating “Not known”, leaving it up to buyers to undertake their own enquiries if they so choose, by commissioning a professional Japanese knotweed survey.
The changes will bring greater clarity to the legal process in misrepresentation cases where a seller has answered “No” and knotweed is subsequently discovered. Where a “Not known” answer is given, the onus will be on the buyer to prove that the seller’s answer was false and that they were indeed aware that the property was affected.
In January 2020 a claim against a seller who answered “No” to the TA6 Form question “Is the property affected by Japanese knotweed?” was settled out of court. The claimant, having bought the property in 2014, discovered Japanese knotweed growing in 2015, and brought a claim for misrepresentation.
The defendants made sworn testimony that the answer they gave on the TA6 Form was the truth to the best of their knowledge, having established by internet searches what Japanese knotweed looked like. Their testimony was reinforced by landscape gardeners who, having worked on the property, had never noticed knotweed.
Expert evidence was obtained from two knotweed specialists able to agree that the knotweed rhizome would have been present in the ground at the time of the property sale. The expert for the claimant argued that the defendants must have been aware of the knotweed, as its vigorous above ground growth would have been obvious, even to a layperson. The expert for the defendants, Environet’s Nic Seal, pointed out that if the knotweed had been treated in some way, for example by the defendants’ predecessors, dormancy could explain why no knotweed was visible to or identifiable by the defendants.
Strictly speaking the “No” answer given on the TA6 was incorrect, but the answer was given to the best of the defendants’ knowledge and belief.
Valuation experts agreed that the property value was diminished by virtue of the knotweed presence but did not agree on the quantum. The expert for the Claimant put the figure at 23% of the property’s value, whereas the expert for the defendants came to the more realistic figure of 3% on the facts and circumstances of this particular case.
James Carpenter from Walton Taylor LLP, for the defendants, said:
“The uncertainty and costs of trial often make an early settlement the sensible way forward. Getting good advice and opinion evidence from the outset is critical. The other lesson from this salutary tale is to only answer “No” on the TA6 Form if one is absolutely 100% certain that no knotweed exists in the ground. In practical terms this means that ‘Don’t Know’ is the safer alternative answer, leaving the buyer to make their own enquiries and take the risk.”
Nic Seal from Environet added:
“With visual surveys, no reputable knotweed specialist could certify that no rhizome is present in the ground, reinforcing the message that the safe bet is to always answer ‘Don’t know’, except of course where the answer should be ‘Yes’. I therefore welcome the Law Society’s revisions to the TA6 form guidance made last week.”
Kindly shared by Environet UK