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Residential Property Litigation Update – February 2020

21-02-2020


1. Untying the Japanese knotweed

On 7 February 2020, the fourth edition of the Seller’s Property Information Form (TA6) (the “PIF”) was issued by the Law Society. The PIF is a significant part of the conveyancing process as it gives the buyer substantial information provided by the seller regarding the Property, including its boundaries, the history of any disputes, planning notices and environmental matters.It is crucial that the seller fills out the PIF correctly, otherwise a buyer may subsequently be able to bring a claim against the seller as a result of any answers which were misrepresented/concealed in the PIF prior to completion of the transaction.A major area for disputes in this area concerns the presence of Japanese knotweed, which can cause significant damage and potentially deter lenders from offering security without sufficient assurances in place.

The PIF

Question 7.8 outlines the information required from the seller concerning Japanese knotweed (this has remained the same from the previous edition):
Is the property affected by Japanese knotweed?

One of the main differences with the fourth edition of the PIF is that it contains an updated note on Japanese knotweed:

Old form TA6 (3rd edn)
Note: Japanese knotweed is an invasive non-native plant that can cause damage to property. It can take several years to eradicate.

New form TA6 (4th edn)
Note: Japanese knotweed is an invasive non-native plant that can cause damage to property if left untreated. The plant consists of visible above ground growth and an invisible rhizome (root) below ground in the soil. It can take several years to control and manage through a management and treatment plan and rhizomes may remain alive below the soil even after treatment.

Significantly, the explanatory notes accompanying the TA6 also state:
“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. Herbicide-based treatment may not kill the below ground rhizome which may lead to new growth and the spread of the plant and rhizome”.

The risk here is clearly that a seller may, without reviewing the explanatory notes, state “No” in answering question 7.8 on the honest belief that there are no physical signs of Japanese knotweed at the property or within 3 metres of the boundary.Clearly the threshold required of the seller in answering this question is higher, and therefore if a seller is unsure about the existence of Japanese knotweed, it is clearly sensible (as the explanatory notes also state) that the seller should indicate “Not known” in reply to 7.8. This will transfer any risk on to the Buyer.

2. Surveyors to run the rule on the determination of a boundary dispute?

The Property Boundaries (Resolution of Disputes) Bill [HL] 2019-2020 saw its first reading on 15 January 2020 having first been mooted as a private members’ bill back in 2012.
In the event of a boundary dispute between neighbours, which often arise where one party builds close to, or on the boundary line, or materially affects boundary features, the Bill seeks to require parties to appoint a surveyor to determine i) the precise location of the boundary, ii) the extent to which any building or structure etc extends beyond the boundary, as well as iii) the costs of making the award.

This procedure is similar to that adopted under the Party Wall etc Act 1996 and in effect places the appointed surveyor as the arbiter of the dispute, as opposed to the current forum before a judge sitting in the court or First-Tier Tribunal, where surveyors play a significant role, but as expert witnesses.
In our experience, boundary disputes can be very difficult to resolve, particularly in circumstances where the parties’ value the land as far more than simply its commercial worth. This can lead to costly and protracted disputes and therefore any potential mechanism to help parties reach a resolution in a more proportionate and succinct manner should be explored. The Bill is still a long way away from becoming law and we shall be watching this space.

3. PLA’s damning feedback on the County Court system

The Property Litigation Association (PLA), which is a network of lawyers specialising in all aspects of property litigation, recently surveyed its members on whether any improvements had been made to service standards by HMCTS (Her Majesty’s Courts & Tribunal Services) since the PLA’s last feedback in 2015.

To summarise the report[1]:

  1. 4% of respondents to the survey considered that the County Court system is not fit for purpose.
  2. 35% of participants considered the standard of court administration to be either poor or very poor
  3. 93% confirmed that, in the last three years, their clients had expressed concerns over the efficacy of litigation in the County Courts.
  4. All the figures show a slight worsening since 2015.

The main concerns by those surveyed range from inadequate management of documents and files; inordinate delays in dealing with correspondence; unanswered telephones; administrative errors; documents and files going missing, as well as the absence of counter-service.

These are all familiar issues that litigators operating in the County Court face on a regular basis and moving forward, it will be interesting to see whether HMCTS’ ongoing digitalisation of the Court system, amongst other things, will improve matters.

 

[1] Property Litigation Association – Court Users’ Feedback Report 2020


Sam Pinder

Associate
Commercial Disputes
Property Disputes

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