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    • 43429525
    • By 43429525 30th Nov 17, 12:33 AM
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    43429525
    Court Action - Surveyor Japanese Knotweed
    • #1
    • 30th Nov 17, 12:33 AM
    Court Action - Surveyor Japanese Knotweed 30th Nov 17 at 12:33 AM
    I write this early morning to try and clear my head to see if it will help me sleep.

    My situation - I purchased my a house late 2016 with a homebuyers survey paid. I didn't instruct the surveyor, my mortgage provider did.

    House is detached with public foot path to the side of the house with vegetation against the wall of property. A garden to the front and to the rear garden.

    I had no idea at the time what Japanese Knotweed (JKW) was, however it was brought to my attention and a professional company confirmed this to be true and a cost of 000's to treat. JKW growing in front and rear garden aswell as to the side of house. Infestation highlighted as Cat 4 on RICS scale, the highest rating.

    Seller ticked dont know on TA16, surveyor didn't comment JKW anywhere in report.

    Ive involved a solicitor and the surveyor has completed there response and continually accept no liability sending responses that the blame lies elsewhere. They comment thay the homebuyers report wouldnt take a surveyor to an external boundary, or that they should have gone outside to examine for JKW. Dead canes existed within the vegetation to the side if the house and an opinion of the JKW expert advises its about 5 years mature. It was growing thick in front and back garden in the summer.

    Has anyone been in this situation before or know of anyone? This is looking likely towards heading for court and I just want to hear if any similar situations exist and the outcome.

    Its legal ping pong at the minute but unsure if Im actually on the winning side here.
Page 1
    • observations from a hill
    • By observations from a hill 30th Nov 17, 12:39 AM
    • 149 Posts
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    observations from a hill
    • #2
    • 30th Nov 17, 12:39 AM
    • #2
    • 30th Nov 17, 12:39 AM
    Who is thinking of taking whom to court? Upon what basis?
    • Cakeguts
    • By Cakeguts 30th Nov 17, 12:55 AM
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    Cakeguts
    • #3
    • 30th Nov 17, 12:55 AM
    • #3
    • 30th Nov 17, 12:55 AM
    You didn't have the house surveyed to look for problems that you needed to know about. The mortgage company sent out a valuer to value the property so that they could offer you a mortgage. This was entirely for their benefit not for yours. It was to make sure that if the house was repossessed they could get their money back. That was the purpose of that surveyor visiting the house.

    If you wanted to have the house surveyed for your benefit you needed to instruct a surveyor to do that. Those are the surveys that show up the problems with the house that you need to know about before you buy it.

    The surveyor is not liable for not noticing the knotweed. The survey was not one where they were looking for problems with the house it was one to check the valuation for the mortgage company. You may have paid for it but is was part of your mortgage application rather than a check on the condition of the property for your benefit. If you wanted to check the condition of the property you should have paid for a survey that covers that aspect.

    I can't see you winning at court because the surveyor is correct in that they are not liable for not find the Japanese knotweed during a valuation survey that didn't cover looking for it.

    You took a risk by not paying for your own survey and relying on the mortgage company's survey which didn't cover what you needed it to.

    This was a mistake that you made and you are now finding out why relying on the mortgage valuation survey is a false economy.

    In order to get any compensation from the previous owner you have to prove that they knew that what was growing in their garden was Japanese knotweed. You didn't know what it was until someone pointed it out so you will find it very difficult to prove that the previous owners knew what it was.
    • googler
    • By googler 30th Nov 17, 12:55 AM
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    googler
    • #4
    • 30th Nov 17, 12:55 AM
    • #4
    • 30th Nov 17, 12:55 AM
    The seller ticked 'don't know' on a form. So it sounds as though he/she were in the same position as you

    "I had no idea at the time what Japanese Knotweed (JKW) was"

    So any court action against the seller would seem to be on shaky ground.

    The scope of what the surveyor was asked to do will depend on their instruction from the mortgage co., and if they say that this specified to go no further than the fabric of the house, then I don't see much basis for action against them, either....
    • eddddy
    • By eddddy 30th Nov 17, 6:33 AM
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    eddddy
    • #5
    • 30th Nov 17, 6:33 AM
    • #5
    • 30th Nov 17, 6:33 AM
    My situation - I purchased my a house late 2016 with a homebuyers survey paid. I didn't instruct the surveyor, my mortgage provider did.
    Originally posted by 43429525
    They comment thay the homebuyers report wouldnt take a surveyor to an external boundary, or that they should have gone outside to examine for JKW.
    Originally posted by 43429525
    You may have already seen the following...

    The RICS say:

    Description of the RICS HomeBuyer (Survey &
    Valuation) Service


    Outside the property
    The surveyor inspects the condition of boundary walls, fences, permanent outbuildings and areas in common (shared) use. To inspect these areas, the surveyor walks around the grounds and any neighbouring public property where access can be obtained.

    http://www.rics.org/Global/Description_RICS_HomeBuyer_Survey_and_Valuation_Se rvice.pdf
    And also:

    Japanese Knotweed and residential property
    RICS information paper


    5.2.2 Knowledge of the area and pre-inspection checks Local knowledge and pre-inspection checks can help the valuer or surveyor identify general neighbourhood features regularly associated with the growth of Japanese Knotweed.

    ...
    If the client wants greater assurance, he or she should commission a HomeBuyer Report or a building survey. Although these are not specialist Japanese Knotweed services, the inspection of the property and its grounds will be more comprehensive than with a mortgage valuation inspection and there will thus be a greater opportunity to identify any growth. In these cases, inspection along and over the boundaries is important especially where those features listed in 5.2.2 are present.

    http://www.rics.org/Global/Japanese_Knotweed_and_residential_property_1st_edi tion_PGguidance_2012.pdf
    So it sounds like the surveyor certainly should have been going outside looking out for knotweed.

    (But I've no personal experience of litigating against surveyors in ths kind of situation.)
    • moneyistooshorttomention
    • By moneyistooshorttomention 30th Nov 17, 7:05 AM
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    moneyistooshorttomention
    • #6
    • 30th Nov 17, 7:05 AM
    • #6
    • 30th Nov 17, 7:05 AM
    Some posters seem to be assuming you had the lowest level of survey - ie think it's called "Home Valuation Survey" ??

    From your comments - you refer to a "homebuyers survey".

    1. AFAIK there are 3 levels of survey - what is the exact title of the level of survey you had and what is the cost for it? (ie price would also help indicate what level of survey you had).

    2. Following this thread with interest - as there were 3 of us that moved here at the same time and the other 2 of us both found JK in our gardens subsequently that the surveyor hadnt mentioned (am in process of finding out what level of survey they had - and its certainly worth checking out those RICS guidelines as to what they are supposed to survey for).

    3. The weasel word, as far as I can work out to date, that is used as a get-out clause by some tradespeople (including surveyors) is "inaccessible". So they can say - "I couldnt do that part of my job because it was inaccessible". Does this surveyor say the garden is inaccessible? If so - are they telling the truth - what is the accessibility of the garden like? If the garden has it that badly - I would imagine that a survey done spring/summer time would show up JK just by literally looking out one or more of the windows from inside the house.

    4. What time of year was this survey done? As JK does die down substantially over winter - but there should have been some dead stalks still there that would show its presence I would have thought. The owner of a site near me that they wish to redevelop has been studiously deliberately hiding the last remaining traces of JK - but there are still a couple of tall dead stalks there right now that I'm hoping any prospective buyers of that site will find "giveaway enough" of an attempted cover-up job (but buyers will need some familiarity with how JK looks at all stages to be able to realise what it is for themselves).

    Good luck.
    Last edited by moneyistooshorttomention; 30-11-2017 at 7:10 AM.
    New Year's Resolution already made -

    Don't get mad....get firm ...
    • Davesnave
    • By Davesnave 30th Nov 17, 7:32 AM
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    Davesnave
    • #7
    • 30th Nov 17, 7:32 AM
    • #7
    • 30th Nov 17, 7:32 AM
    My situation - I purchased my a house late 2016 with a homebuyers survey paid. I didn't instruct the surveyor, my mortgage provider did.
    Originally posted by 43429525
    This is unclear.

    Who paid for the survey?

    Some mortgage lenders offer the buyer the option to upgrade a valuation survey to a Homebuyer's, but in that case the purchaser would pay the extra.

    If the survey was paid for by the lender, then it wasn't an inspection that would give any recourse in the event of JK being subsequently found.
    'A society grows great when old men plant trees whose shade they'll never sit in.'
    • Rambosmum
    • By Rambosmum 30th Nov 17, 8:37 AM
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    Rambosmum
    • #8
    • 30th Nov 17, 8:37 AM
    • #8
    • 30th Nov 17, 8:37 AM
    When was the survey done? Do you know for certain that the JKW was actively growing at the time of the survey.


    Issues I see are:


    - there may not have been visible JKW on the premises at the time of the survey because a) if was during down time or b) the seller chopped it down (either knowingly or unknowingly) at the end of the summer to tidy up the garden.


    To be successful in court you would need to evidence that someone (either homeowner or surveyor) knew that the JKW was there and didn't tell you, or that surveyor could be reasonably expected to see it and note it. You'll be hard pushed to find that out as JKW is pretty easy to chop down and bin (though not legal) and a inexperienced gardener may do that not knowing what it is.
    • DaftyDuck
    • By DaftyDuck 30th Nov 17, 9:00 AM
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    DaftyDuck
    • #9
    • 30th Nov 17, 9:00 AM
    • #9
    • 30th Nov 17, 9:00 AM
    You could ask for all photographs the surveyor took during his survey. They tend to take many more these days than are ever included in any report. Rambosmum may be right, a garden tidied for sale may have cleared away the obvious evidence.

    One thing such a request would rapidly reveal is if the surveyor has any obligation to you, or merely to the mortgage company, as payers of the fee.

    Solicitors and lawyers have an uncanny ability to assure potential clients they have a strong case when, in fact, they have none. I have, of course, no idea at all why this should be so....

    Recourse against the seller might be possible, if the "don't know" is provably false. Who told you; did they tell them? Any sign it was treated, even poorly? My previous owners ticked "none at property", but it's in the Parish Council notes they were told, the neighbours told them, and the council told them.... No point chasing them, as it's easier to deal with it directly myself. Your situation may be different.
    • moneyistooshorttomention
    • By moneyistooshorttomention 30th Nov 17, 9:04 AM
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    moneyistooshorttomention

    One thing such a request would rapidly reveal is if the surveyor has any obligation to you, or merely to the mortgage company, as payers of the fee.

    .
    Originally posted by DaftyDuck
    If it does turn out that the only surveyor obligation is to the mortgage company in this case - then I would have thought said mortgage company would want to protect "their asset" that this mortgage is secured on. A house with JK is worth less than one without JK and maybe said house would be worth less than they loaned you and that wouldnt provide that company with as much "security" as they thought they had in it iyswim.

    They might not be very happy at that surveyor having assured them house was worth, say, £120k - so they lent you £100k on that basis. Cue for JK being found and maybe that house is only really worth £80k and they've lent £20k there is no equity backing for.
    New Year's Resolution already made -

    Don't get mad....get firm ...
    • davidmcn
    • By davidmcn 30th Nov 17, 9:05 AM
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    davidmcn
    So it sounds like the surveyor certainly should have been going outside looking out for knotweed.
    Originally posted by eddddy
    Yes, I've seen plenty of surveys which say "aha, we have spotted JK in the garden / nearby". But a lack of any mention doesn't mean it's definitely clear, just that it wasn't obvious. So - what would have been seen at the time the surveyor inspected?
    • Lucky Duck
    • By Lucky Duck 30th Nov 17, 11:19 AM
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    Lucky Duck
    If it does turn out that the only surveyor obligation is to the mortgage company in this case - then I would have thought said mortgage company would want to protect "their asset" that this mortgage is secured on. A house with JK is worth less than one without JK and maybe said house would be worth less than they loaned you and that wouldnt provide that company with as much "security" as they thought they had in it iyswim.

    They might not be very happy at that surveyor having assured them house was worth, say, £120k - so they lent you £100k on that basis. Cue for JK being found and maybe that house is only really worth £80k and they've lent £20k there is no equity backing for.
    Originally posted by moneyistooshorttomention
    Regardless of who directly paid for the survey the surveyor owes a duty of care to the purchaser
    • davidmcn
    • By davidmcn 30th Nov 17, 11:21 AM
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    davidmcn
    Regardless of who directly paid for the survey the surveyor owes a duty of care to the purchaser
    Originally posted by Lucky Duck
    Indeed, who pays for it isn't necessarily an indicator of who the report is addressed to e.g. in Scotland, Home Reports include a survey instructed and paid for by the seller, but purchasers and their lenders are entitled to rely on it.
    • 43429525
    • By 43429525 30th Nov 17, 2:08 PM
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    43429525
    I instructed a Homebuyers report. The 2nd tier of the 3 reports, the cost was just shy of £450.00. This report was undertaken November a month where Knotweed doesnt grow and is in it's dead state.

    There is a large amount of dead canes exisiting from previous years growth all around the property and in the back garden.
    • Davesnave
    • By Davesnave 30th Nov 17, 2:22 PM
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    Davesnave

    There is a large amount of dead canes exisiting from previous years growth all around the property and in the back garden.
    Originally posted by 43429525
    That's now.

    Unfortunately, a whole year has gone by, so proving what was visible at the time of inspection might be tricky, especially as dead stems could have been deliberately removed.

    However it's well worth examining photographs you took of the property, which might show the situation in autumn 2016.
    'A society grows great when old men plant trees whose shade they'll never sit in.'
    • eddddy
    • By eddddy 30th Nov 17, 2:28 PM
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    eddddy
    I instructed a Homebuyers report. The 2nd tier of the 3 reports, the cost was just shy of £450.00. This report was undertaken November a month where Knotweed doesnt grow and is in it's dead state.

    There is a large amount of dead canes exisiting from previous years growth all around the property and in the back garden.
    Originally posted by 43429525
    The "Japanese Knotweed and residential property - RICS information paper" that I linked to above includes "Appendix C: Japanese Knotweed identification chart" on page 23 with photos of what it looks like in November.

    Link: http://www.rics.org/Global/Japanese_Knotweed_and_residential_property_1st_edi tion_PGguidance_2012.pdf

    This is the sort of stuff that RICS residential surveyors should be reading as part of their job.


    If you have been told this in writing...

    They comment thay the homebuyers report wouldnt take a surveyor to an external boundary, or that they should have gone outside to examine for JKW
    Originally posted by 43429525
    ... that strengthens your case, because the RICS say otherwise (see post #5).
    • ProDave
    • By ProDave 30th Nov 17, 3:27 PM
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    ProDave
    I don't see any discussion about eradicating the JKW? Surely that is the No 1 priority?

    You can even DIY treat it, with a Glyphosphate based weed killer e.g. Gallup 360. It will need regular dosing for a long time, possibly stretching to years, but it can be eradicated for very little cost.

    Indeed some will argue leaving it in place and persistently treating it is the best way. digging it up and removing it only risks spreading it, and it will still need persistent treatment as you cannot physically dig it ALL up.
    • BoGoF
    • By BoGoF 30th Nov 17, 3:31 PM
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    BoGoF
    Indeed, who pays for it isn't necessarily an indicator of who the report is addressed to e.g. in Scotland, Home Reports include a survey instructed and paid for by the seller, but purchasers and their lenders are entitled to rely on it.
    Originally posted by davidmcn
    But as I am sure you are aware the law is different in Scotland and it is not the case in England whereI assume OP is.
    • davidmcn
    • By davidmcn 30th Nov 17, 3:46 PM
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    davidmcn
    But as I am sure you are aware the law is different in Scotland and it is not the case in England whereI assume OP is.
    Originally posted by BoGoF
    As far as I'm aware the principles are the same. The relevant question isn't "who paid for it", but "who was the report addressed to".
    • teneighty
    • By teneighty 30th Nov 17, 4:06 PM
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    teneighty
    I instructed a Homebuyers report. The 2nd tier of the 3 reports, the cost was just shy of £450.00. This report was undertaken November a month where Knotweed doesnt grow and is in it's dead state.

    There is a large amount of dead canes exisiting from previous years growth all around the property and in the back garden.
    Originally posted by 43429525
    Seems reasonably straightforward, the surveyor missed it. I do not understand why you have engaged a solicitor and are talking about court action. Just go through the formal complaints procedure and if necessary the ombudsman, its all free.
    Last edited by teneighty; 30-11-2017 at 5:49 PM.
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