The knotty subject of Japanese knotweed has been featured in this column before, from a variety of perspectives – it is a minefield for the seller of a property. If you have the plant, you are obliged to tell your buyer. If you do, they will more than likely pull out of the deal and your property will be blighted.
The problem is that many of us simply would not recognise what is lurking in the unkempt far corner of our garden. Could it be Japanese knotweed? Could it be giant knotweed, or another hybrid altogether? Should you check, or just keep your fingers crossed?
The Law Society Property Information Form (LSPIF) provides three options as acceptable answers to the question of whether a property is affected by Japanese knotweed: yes, no, or not known. Clearly, if you are aware of the plant’s existence, the answer you are required to give is obvious. But can you be sure? Is it safe to answer no? What happens if Japanese knotweed is later found in your garden? You may be accused of misrepresentation.
Over time, conveyancers have developed procedures, including the preamble in the LSPIF advising sellers they are not expected to have expert knowledge of legal or technical matters, and warning buyers that, while they are entitled to rely on the replies given to the enquiries in relation to the physical condition of the property, these replies should not be treated as a substitute for undertaking their own survey or making their own independent enquiries, which buyers are recommended to do.
Some solicitors even send a covering letter stating that, while all enquiries at any time during a transaction are given in good faith, it is not implied that the seller’s solicitor has carried out any investigation or made any enquiry before giving any reply. Furthermore, they state that a buyer shall, by virtue of their proceedings, not seek to claim reliance based upon such implied investigation or enquiry, and will be deemed to have checked any replies.
Overall, it is an area fraught with risk, for sellers and buyers alike. If, as a seller, you are in any doubt you would be well-advised to seek professional legal guidance as to how to answer; if you are a buyer, why not commission your own Knotweed survey?
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