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Ally Tow
Ally Tow,
SENIOR ASSOCIATE - CHARTERED LEGAL EXECUTIVE
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To be or Knotweed to be?
31 May 2019

Purchase of property

In 2014 Paul Ryb viewed a Victorian villa ground floor flat in Highgate, North London. Mr Ryb which he was considering purchasing.  Mr Ryb, a partially slightly former investment banker, did not want “to take any chances” with the condition of the property and so he commissioned a chartered surveyor to carry out a full structural surveyor, now known as a Level Three RICS Building Survey (“a Level 3 Survey”).  A level 3 Survey, which is the highest level of survey available, provides a report which describes in detail the form of construction of the property and gives guidance on repairs, maintenance and other remedial works which are considered necessary.

The survey found the property “to be in excellent condition with very few defects” and recommended that the sale proceed.  Mr Ryb proceeded with the purchase, paying £1.2m for the flat, the purchase of which was completed in October 2014.

Discovery of Japanese Knotweed

Towards the end of 2015, a gardner employed by Mr Ryb spotted what he believed to be Japanese Knotweed growing in the garden at the flat.  Mr Ryb engaged a specialist firm to examine the plant and remove the same after they confirmed that it was indeed Japanese Knotweed.  The removal firm also provided evidence to Mr Ryb to the effect that the maturity of the plant proved it had been present for at least three years.  The removal firm said that as the plant was in leaf and flowering it would have been “easily identifiable” the previous year when the survey had taken place.

Court proceedings

Mr Ryb paid the removal firm £10,000 to remove the plant and then issued proceedings against the surveyor seeking recovery of his losses including a further sum for insurance to cover against the possibility of the plant re-growing.  He also sought damages for a diminution in value to his property.

In March of this year, Mr Ryb, supported by expert evidence from the removal firm, was successful in his claim for damages against the surveyor with the court awarding him £50,000 in damages.

Conclusion

Japanese Knotweed can cause considerable damage to your property.  The roots have the ability to grow to nine feet below ground and it can re-grow from just a fracture of its root structure.  It can therefore be very costly to home owners and some of the major high street lenders are now refusing to lend if a home has the plant present in its grounds.  Given the prevalence of the plant within the country now and the outcome of Mr Ryb’s case we can expect more claims to be issued so it is important for surveyors to ensure that they know and can identify the plant.  Whilst if the seller tries to hide or disguise the plant it is unlikely the surveyor will be held liable (with the buyer being left to bring any claim against the seller) it would appear from this latest case that the courts are likely to find that (in the case of a Level 3 Survey at any rate) that a surveyor’s duty of care extends to the grounds of a property as well as the property itself.

It really is therefore a case of “to be or knotweed to be” and surveyors should proceed with caution!

 

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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