Don't get into a knot when buying or selling a land or property.
Could you identify Japanese Knotweed in your garden or on your land and do you know how to act responsibly (and within the law) if you do?
Also, should you pull out of a house or land purchase if Japanese Knotweed is discovered or if it used to be on the site?
This fast-growing plant is invasive, can be expensive to remove and could cause an issue if you plan to buy or sell land or a property where it is found or where it has historically been found.
However, the approach to dealing with the problem has been reviewed and in October 2022 the Royal Institute of Chartered Surveyors (RICS) updated industry findings on the issue and guidance for members. Some of this relates to how the scale of a Japanese Knotweed infestation is described in a property survey and how these impacts on a valuation.
First, it is important to know that there are several ways that you could be legally responsible for dealing with Japanese Knotweed on your land.
If you allow it to invade a neighbour’s garden or land, then they could bring a civil claim against you for private nuisance and or trespass.
The Environmental Protection Act 1990 designates Japanese Knotweed-contaminated soil as controlled waste and only a licensed organisation can remove it from a property to an appropriate facility.
Under the Wildlife and Countryside Act 1981 there could be criminal liability if you plant or allow Japanese Knotweed to grow into the wild which could be caused from having it on your land and it spreading to neighbouring land. New provisions to this Act were updated in 2015 to enable organisations such as the Environment Agency to seek a Species Control Agreement with a landowner which if breached could lead to fines, prosecution and the authority carrying out the work at the landowner’s expense.
There are also criminal liabilities under the Invasive Alien Species Regulations which the UK has retained following its departure from the European Union. This affects the management and introduction of an invasive species which could have a detrimental impact on the local environment and biodiversity.
There are also various Local Authority powers which could serve notice to a landowner to remove Japanese Knotweed from their land as well as Police Powers under the Anti-social Behaviour, Crime and Policing Act 2014.
As a recent Court of Appeal ruling demonstrates, a homeowner in Bridgend was awarded £4,900 compensation from the local council to cover the stigma attached to a property of having had Japanese Knotweed in the garden, (even though it had been successfully removed).
There are also various cases brought by homeowners in recent years who have successfully sued neighbours for encroachment of the plant into their garden. Earlier this year, a house seller was ordered to pay £32,000 in damages plus costs for misrepresenting to the house buyer regarding the presence of the plant at the property.
So with all this in mind, should you go ahead and sell or buy a property or land if you suspect or know there is Japanese Knotweed? If you are the seller, then you have an obligation to be truthful in relation to enquiries which will be made by the buyer about the property or land.
If you are the buyer, then only you can decide whether to go ahead. You can arrange for a specific survey and assessment of the extent of the issue, which will detail how to get rid of it and the costs. You could also use the presence of Japanese Knotweed to negotiate a significant discount on the land or property purchase price. But be careful, as some lenders will not lend where Japanese Knotweed has been found.
There is the Land Remediation Relief Scheme available which offers tax relief for companies who remediate contaminated or derelict sites.
If you are subsequently buying a property on such a site, it will be important to know work has been carried out effectively.
If you would like to discuss a residential property or land purchase or sale, get in touch with our team today.