Japanese Knotweed buyers survey states no risk and not categorised

mbugsy18

My buyer had a survey done because my answer to the knotweed question was unknown. The surveyor before he left told me he’s seen some in a neighbours garden but not in mine but was concerned the garden next door was not well maintained and overgrown and would say it’s in the area. The buyers lender wanted a treatment plan in place which obviously I couldn’t get as I don’t have it in my garden over the 25 years I have lived here. It’s been well maintained and weeded.
I answered unknown to the JKW question can I now change it to ‘No’?

AdrianC

So what changed to give you this certainty that you didn't have before?

Even if you say "no", the buyer may still push for you to pay for a treatment plan for a plant that you don't think is there.
You do not, of course, have to acquiesce. You wouldn't have to even if the answer was "yes".
They may, of course, decide to walk away from the purchase if you don't.

Davesnave

It would have helped immensely if you'd quoted the question on the TA6, which is:

7.8 Is the property affected by Japanese knotweed? If Yes, please state whether there is a Japanese knotweed management and treatment plan in place and supply a copy with any insurance cover linked to the plan

The notes which accompany the TA6 regarding this are  as follows:

"Question 7.8 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. Herbicide-based treatment may not kill the below ground rhizome which may lead to new growth and the spread of the plant and rhizome. Additionally, even if no above ground knotweed growth is visible, do not assume that physical excavation or remediation of Japanese knotweed rhizome (root) has or will result in complete eradication. Excavation of Japanese knotweed rhizome (root) from a property can be an effective method of remediating the problem. However, removal of the rhizome from the soil can 13 © Law Society 2020be difficult to achieve as a thumb sized piece of rhizome can lead to new growth and the spread of the plant and rhizome. Chemical (herbicide) control of Japanese knotweed requires several years of herbicide-based treatment before it can be controlled and managed successfully. Using the correct herbicide (e.g. glyphosate) this process may take between 3 and 7 years for most infestations of residential property. A Japanese knotweed management plan can help to control the spread of Japanese knotweed and manage its regrowth. Japanese knotweed management plans should provide a record of works carried out to control the Japanese knotweed. They can provide reassurance to mortgage lenders who may be concerned about the impact of Japanese knotweed on the value of the property. Ensure that all works are carried out by a reputable contractor who is able to indemnify the works through provision of an insurance-backed guarantee. Sellers should provide a copy of any Japanese knotweed management plan to the buyer and evidence of insurance cover relating to the plan."

I have highlighted a part that may be relevant. Perhaps you have highlighted a problem with this revised form, overzealous bum-covering surveyors and risk-averseness in society as a whole?

GDB2222

The question is 'Is the property affected by Japanese knotweed?'. I’m not sure, but if it’s in the neighbouring garden the correct answer may be yes, it is affected!

It seems to me that you can answer yes to the question and have trouble selling. Or you can answer no, have no problem selling, but then get sued afterwards. Your choice. 

You had best ask your solicitor how best to proceed. At least, he has insurance, whereas there’s no comeback on any advice that you get on this forum.

As far as your present buyers are concerned, they already know the position.

davidmcn

GDB2222 said:

The question is 'Is the property affected by Japanese knotweed?'. I’m not sure, but if it’s in the neighbouring garden the correct answer may be yes, it is affected!

I think the correct answer is "no" in that case (if they wanted to know about neighbouring properties being affected, they'd have asked). But (a) there's obviously no point changing the answer for the purposes of the current buyers, who have a better understanding of what the position actually is, and (b) saying "no" still leaves you with the risk of either the surveyor being wrong or the JK spreading onto the property before completion, and you get a claim from the buyers that you had misled them.

As we've discussed here before, it's a daft question - if anything it should be "to the best of your knowledge...", not what appears to be a warranty.

mbugsy18

Thanks for your replies. My buyers withdrew their offer as they didn’t want the risk of litigation with the immediate neighbours if it was on their property. 

When I asked the surveyor about informing the neighbour he said not to bother as I was selling my house. 

GDB2222

It depends on what the word 'affected' means. My understanding is that JKW spreads a long way underground, so it may be underneath your garden, even though you can’t see it above ground. Is that ‘affected' then? I would not want to be in court arguing about it.

Fortunately the notes to TA6 clarify that. To answer no, you need to be sure that there are no roots within 3 metres. How can the op do that? Or anyone else either? As David says, the form is daft.

The OP needs to pester his neighbours to get rid of the infestation or at least put in place a plan to do so.

SpiderLegs

mbugsy18 said:

Thanks for your replies. My buyers withdrew their offer as they didn’t want the risk of litigation with the immediate neighbours if it was on their property. 

When I asked the surveyor about informing the neighbour he said not to bother as I was selling my house. 

that sounds like incredibly bad advice.

Won’t it be funny if you keep quiet, get a new buyer, then in a years time this problem rears it’s head and the new owner and neighbour find out about your previous survey. 

Davesnave

GDB2222 said:

The OP needs to pester his neighbours to get rid of the infestation or at least put in place a plan to do so.

Or the revised Law Society TA6 needs to be reconsidered in the light of real world issues like this.

Davesnave

mbugsy18 said:

The surveyor before he left told me he’s seen some in a neighbours garden but not in mine but was concerned the garden next door was not well maintained and overgrown and would say it’s in the area.

Being in a neighbour's garden and 'in the area' is not necessarily next door, so were the plants observed in your next door neighbour's garden, or somewhere else?

mbugsy18

It was observed in the garden adjacent to next door and was about 8 metres away.