Japanese knotweed management - The challenge
Put simply, Japanese knotweed is very difficult to get rid of! The PCA Invasive Weed Group was formed for exactly this reason, to give confidence to homeowners and lenders that when they use a qualified, professional surveyor/contractor they can have confidence that this pernicious weed will not return! But the proposition needs to be qualified as in many cases the risk of recurrence does not disappear completely. Whilst minimised, if even ‘treated’ knotweed rhizome remains in the soil there is a medium-term risk of re-growth which, although small, needs to be managed hence the value of guarantees and reason behind financial stability checks on PCA members!
Law Society releases new TA6 Property Information Form
This all comes to mind when we look at the Law Society’s new (4th edition) TA6 “Property Information Form”, commonly used by solicitors to collect information during the conveyancing process. The significance of Japanese knotweed to a potential buyer is reflected in the ‘Environmental matters’ section and since 2013 (3rd edition) there has been a specific question regarding knotweed: “Is the property affected by Japanese Knotweed?”. The options are “yes”, “no” and “not known” which is all straightforward if the property is infested, has never had knotweed or the vendor genuinely has no idea one way or the other!
What is the right answer when Japanese knotweed has been treated?
But there has always been a problem with finding the ‘right’ answer when knotweed has been present in the past, but treated/managed/’eradicated’ since. This is because, as explained above, with herbicide management plans, knotweed roots (rhizomes) persist in the soil; dead or in long-term dormancy but still potentially capable of “affecting the property” (especially if the ground is disturbed). Under these circumstances some vendors might answer “no” (in ‘good faith’ because there is nothing above ground; but potentially misleading the buyer as there remains a possibility of re-growth in the future) but others, “yes” the property IS affected by knotweed (then provide documentation to confirm it is under management and/or guarantee).
Perhaps there can be more certainty surrounding knotweed which has been entirely excavated? Under these circumstances, even where knotweed has been present in the past, is the vendor entitled to say “no” the property is NOT affected? This was raised during the recent Commons Select Committee hearing. The Law Society were asked “…to determine whether the need to declare previous Japanese knotweed problems should expire if the plant has been treated by appropriate excavation and there has been no re-growth within a certain period.” A good question which asks whether we can say in such a case “has the plant been eradicated?”.
Guidance notes have changed significantly
So, what happened? Looking at the 4th edition the first surprise is that the question hasn’t changed! However, the guidance notes on the form and in a separate document have changed substantially and they explain in detail the above risk factors; in short, the vendor must consider what is in the soil, not just what can be seen above ground and they need to consider their neighbours property too (3m buffer zone)!
Specifically, the guidance asks the vendor whether they can be SURE that there is no risk of even very small fragments of knotweed rhizome being present. This appears to clarify the situation which concerned the Select Committee; as long as an excavation has been conducted under strict biosecurity controls (by a qualified knotweed specialist) and the site monitored subsequently for re-growth, it would seem plausible to confirm that knotweed is no longer present. But for all other scenarios, primarily where a herbicide control programme has been completed and even after monitoring for signs of re-growth, the guidance appears to push vendors towards selecting “yes” or “not known” even though there may have been no growth for many years.
The impact of the new TA6 form
What is likely to be the impact of the 4th Edition when it is fully in circulation/use? We welcome most of the changes. They make clear some important issues regarding latent risks associated with knotweed management plans and the importance of professional documentation and insurance-backed guarantees – something which has always been clearly emphasised in PCA Codes of Practice. The inclusion of a 3m buffer zone also highlights the potential for encroachment, but rather complicates life for the vendor!
Overall we hope the new form will result in all professionals (valuation surveyors, solicitors, estate agents, lenders) involved in the house buying and selling process being better informed and there will be less risk of vendors ending-up in court for ticking the wrong box. It helps buyers who should be confident that any historical works to manage Japanese knotweed will be either declared outright (“yes”) or, if “not known” is given, they can have a professional survey (plus review of documentation if available) conducted by a qualified surveyor (CSJK or similar) before proceeding.
Do PCA members need to do anything?
Probably not, but it is worth checking that your survey reports and/or management plans don’t offer to ‘eradicate’ Japanese knotweed unless a full excavation is being provided (and site monitored for several years), that you always explain to clients the various options for treatment/management giving all the pros and cons (see PCA Code of Practice) and finally, emphasise the importance of including neighbouring properties within the scope of works when required (and explain the consequences of not doing so).
The PCA anticipates some questions arising about the new guidance in TA6 so we ask members to keep us informed about reactions from vendors, but please remember, that neither we nor you are qualified to give legal advice! The Law Society are working with the Home Buying and selling Group to trial a new Buying and Selling Property Information (BASPI) form which may eventually replace TA6 so the way in which Japanese knotweed is recorded may change again in the future – watch this space!
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