The Law Society has amended its explanatory notes accompanying the TA6 conveyancing form which will prompt a “sharp increase” in sellers answering “not known” to the Japanese Knotweed question.
This places a new onus on buyers to make their own enquiries into whether a property is affected.
Where previously the guidance simply stated; “The seller should state whether the property is affected by Japanese Knotweed”, the revised form and guidance states: “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.”
The revised form and guidance was released on Friday 7 February 2020.
Sellers who are not aware of Knotweed on their property should no longer answer “no”, instead stating “not known”, leaving it up to buyers to undertake their own enquiries if they so choose, by commissioning a professional Japanese Knotweed survey.
The changes will bring greater clarity to the legal process in misrepresentation cases where a seller has answered “no” and Knotweed is subsequently discovered.
Where a “Not known” answer is given, the onus will be on the buyer to prove that the seller’s answer was false and that they were indeed aware that the property was affected.
In January, a claim against a seller who answered “no” to the TA6 Form question: “Is the property affected by Japanese Knotweed?” was settled out of court.
The claimant, having bought the property in 2014, discovered Japanese Knotweed growing in 2015 and brought a claim for misrepresentation.
James Carpenter from Walton Taylor LLP, for the defendants, said: “The uncertainty and costs of trial often make an early settlement the sensible way forward.
“Getting good advice and opinion evidence from the outset is critical.
“The other lesson from this salutary tale is to only answer “no” on the TA6 Form if one is absolutely 100% certain that no Knotweed exists in the ground. In practical terms this means that ‘don’t know’ is the safer alternative answer, leaving the buyer to make their own enquiries and take the risk.”
Nic Seal from Environet added: “With visual surveys, no reputable Knotweed specialist could certify that no rhizome is present in the ground, reinforcing the message that the safe bet is to always answer ‘don’t know’, except of course where the answer should be ‘yes’.
“I therefore welcome the Law Society’s revisions to the TA6 form guidance made last week.”