Japanese Knotweed buyers survey states no risk and not categorised

Davesnave

mbugsy18 said:

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

So, because the immediate neighbour has an overgrown garden, the surveyor refuses to rule out JK within 3m of the boundary. and their clients' lender demands proof of its treatment, even though it may not exist and you have no control over the situation if it did.

As David says this is a daft situation arising from a daft question in the TA6, placing high responsibilities on a vendor which, in many cases, they cannot discharge.

mbugsy18

I agree. As I don’t want to lose the house I am buying I will have to get a bridging loan and pay a higher stamp duty. 

AnotherJoe

I'm going to check but I don't think I had any such notes accompanying my TA6 (I'm selling currently ) What a ridiculous question when the notes are included, what are you meant to do, go and enter your neighbours gardens? You'd pretty much have to put unknown in every case. 

Too late for OP but you'd have been better off putting no and taking the chance of legal action down the line which which worst case would involve paying for treatment, probably far less expensive than a bridging loan. Especially if it wasn't in your garden at the time, which you say it isn't, say it appeared two years later. How could they prove it wasn't the situation as you described back then, eg "no" was true. 

mbugsy18

With legal action though would I not be liable for costs etc. And they may say the house has lost value to the tune of 5-10% and want a refund.

AnotherJoe

mbugsy18 said:

With legal action though would I not be liable for costs etc. And they may say the house has lost value to the tune of 5-10% and want a refund.

Not necessarily.

The first part of legal action would be a solicitors letter, or perhaps just a Letter Before Action.

You could fold at that point (on teh cost of treatment), or offer a part way settlement,or tell them to go away after all theres no guarantee they would win.

"Dear purchaser, when i filled in the form, to the best of my knowledge there was no JK within 2 metres of the boundary fence, indeed not even in the adjacent gardens, this is considerably outside the 2 metres boundary requirement of the form.

I can only assume that in the time since,  it has encroached upon this distance. I will defend any action you make."

Say they then go for small claims, at that point you can reiterate your previous response but say that in a spirit of goodwill and in full and final settlement you will offer £x as a full and final settlement. Again they will have to balance they might not win.

And if they take you to SCC, you can make the point above when you defend it. And worst case, small claims would be the treatment cost plus £40 costs for small claims. So you'd not really be worse off. 

I dont see how they could win on the house price reduction point, after all treatment would eradicate it, and it is genuinely from what youve said more than a garden away so you'd have answered truthfully, so if in passage of time its encroached what, 20 metres, how is that your liability, they knew it was in the area yet proceeded ? And to go for house price reduction theyd have to take costly legal action. Even if they have insurance woudl the insurers think there was a winnable case when youve truthfully answered the Q to the best of your ability as a layman. You would be held to a lesser standard than a botanist or a JK specialist.

Health warning. IANAL.

GDB2222

mbugsy18 said:

I agree. As I don’t want to lose the house I am buying I will have to get a bridging loan and pay a higher stamp duty. 

That's highly risky, as you don't know whether you can ever sell your house.

robatwork

Davesnave said: 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. 

Logical conclusion of this term is that we all need to dig up our entire gardens, front rear and side, AND that of all our neighbours, when selling our houses, and then get a botanist in to examine the soil, in order to be able to honestly say No. "Certain" isn't a term that's equivocal in law - and how else would we be certain?

I think this term is unfair, unreasonable and hope it gets challenged in court. It clearly needs to be amended, as nobody can realistically choose "No".

GDB2222

There's a question about whether the property is connected to the main sewer. At one time, sellers were advised to answer that "The buyers should make their own inspection."   For this JKW question, the only sensible answer is the same. 

mbugsy18

GDB2222 said:

mbugsy18 said:

I agree. As I don’t want to lose the house I am buying I will have to get a bridging loan and pay a higher stamp duty. 

That's highly risky, as you don't know whether you can ever sell your house.

That’s true. I am hoping to remortgage some BTLs to cover the bridging loan. I am concerned my seller will need to complete in January and I won’t have the mortgage offers in place.
any advice on how to delay the purchase until I can get mortgage offers confirmed rather than the bridging loan. It will take about 34 days to go through the process according to my broker.

BikingBud

GDB2222 said:

There's a question about whether the property is connected to the main sewer. At one time, sellers were advised to answer that "The buyers should make their own inspection."   For this JKW question, the only sensible answer is the same. 

In the same way a potential purchaser should assure themselves about; the roof, the flood risk, the state of the electrics and boiler and plumbing and pointing and windows and damp proof .  

Where does caveat emptor begin and vendor's obligation finish?