Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.
Could you kindly clarify what response you gave in answer to the question about Japanese knotweed please? Were you aware of it but did not believe you were liable for dealing with it or did you have no knowledge of JK affecting the property?
Hi Joshua - please give me 10 minutes - just received phone call
Yes of course. Whenever you are ready..
Hi Joshua - sorry for delay. Re Japanese Knotweed question on TA6 form, I answered No. I was not aware of it and had no knowledge of it JK affecting the property.
Thanks. Do you know the neighbour in question. Do you know of any reason why they would be saying as much? is that neighbour prepared to give an affidavit to that effect to your knowledge?
No I do not know the neighbour, and have no reason why they would be saying so. Would I have to ask the neighbour to give an affidavit to that effect?
Thanks. Do you think the buyer is making this up or do you believe someone has said as they claim?
I am not sure what to think. The Buyer stated that when they cleared behind the garden shed there was shrubs, weeds garden plant rubbish andthe JK. I knew garden rubbish, weeds and plant stuff was behind the shed but did not know any of it was JK. If the neighbour (in the adjoining road) was aware of JK and has, as they state, been contolling it with herbicides, would it not mean it has been present in the area for some time? Further they have not stated exactly the area on the property the JK is present - so I cannot really comment.
Thanks. The position here is that the buyer is as you are aware accusing you of misrepresentation. This being the case the burden of proof is upon her to evidence the misrepresentation not for you to prove that you did not.
Her stating that she has spoken to a neighbour who told you about it who lives in another street is not worth anything. She would need to obtain a sworn statement to this effect from the neighbour (and he is not really a neighbour if he lives in another street but more of a local resident). Even if she can do this there are questions of why a local resident would have specifically spoken to you about Japanese Knotwood. Even if we accept that he did (which of course you don't) it does not follow that you would have been aware of JK if it was hidden underneath other shrubs behind a shed.
The buyer has a long way to go with her claim if she is to establish a case against you. She will need to provide evidence that on the balance of probability proves that you were aware of the JK and what she has to date amounts to nothing more than her word and some hearsay (which hearsay is worthless without a sworn statement)against yours. This is insufficient to establish a claim against you and accordingly all you can really consider for now is repeating that you had no idea that there is any JK on the property and that you have not had any discussions with neighbours and local residents on the issue (assuming this is the case).
Is there anything above I can clarify for you?
OK, that being the case, how should I move forward? They have offered that I meet/discuss or email within next 10 days before they proceed to take legal action. As I said previously I did not know it was there, do not and did not know what it looks like and was not aware of its presence, despite what a local resident states. You have given me a little more piece of mind, and right now I am not so stressed.
One thought has come to me - if JK is present on the property, why was it not picked up by the Home Buyer's report? Is this not negligence against the surveyor?
It is always of course unpleasant if someone is threatening legal action but of course it is anyones right to make any claim against anyone in the civil courts subject to rules against vexatious claims and so on. However as you say above it is worth taking time to consider the quality of the claim she has against you. If all she has is as above, in my view her claim will be a waste of her time and money as I cannot see how she can succeed with in effect no evidence beyond her statement which in itself is worthless as she cannot say for herself that you were not aware of the JK.
She will need evidence that you were were on the balance of probability aware of it. Proving awareness of JK is difficult in the absence of documentation showing you got quotes previously for removal and so on because neighbours will be unlikely to want to get directly involved in a contractual dispute and will also be worried about what they may have to declare re their own property.
You may or may not wish to meet with her or may prefer to deal with her claims by correspondence. There is little you can discuss at any meeting beyond to say as above. Unless you feel that a meeting could result in a settlement or compromise, you may prefer to reply by correspondence expressing your concern regarding the situation but that you were not aware of it and denying her claims suggesting as you say that she obtains input from her surveyor - though he will say that it was not readily ascertainable if hidden underneath bushes so it won't amount to anything. Surveyors are careful to caveat their reports to limit them to things which are readily determinable by inspection and that they have not lifted coverings except where stated otherwise.
In short unless the buyer is able to obtain a body of neighbours sworn statements that the matter was discussed which statements make sense in terms of facts - e.g. other neighbours have suffered with the issue (afterall a neighbour does not just causally discuss JK without reason - she is likely to find her claim challenging though she is of course no doubt angry that she purchased the property in good faith and is now facing an expensive bill. It is an understandable reaction though it of course crucially does not make it your fault unless she can prove you misrepresented the position. Caveat emptor applies and the contract for the property expressly states that she buys it based on her inspection and you make no warranty as to the condition of the property.
Is there anything else i can help you with?
Right - I think it might be best that to deal with her claims by correspondence, as a meeting might evoke strong emotions. Thank you for outlining this for me. I am far more re-assured that the onus is on her part to prove I had knowledge etc. No doubt they will want to pursue this further, but I am a bit more knowledgeable about the probability issue, and will await any response to my return comments.. Thank you again. Definitely well worth the £33 of instant (live time) re-assurance and a better night's sleep. Regards.
A pleasure. I hope that the matter dies down in due course once she has had time to consider her position further. Generally conciliatory but firm correspondence will have a better impact - i.e. sorry to hear but... as opposed to don't care tough luck and not liable
If I can assist any further as the situation develops please do no hesitate to let me know.
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Thank you for the 'tone' - yes on reflection it is best to be concillatory. I will definitely update you on any outcome, and will leave feedback as requested.
Many thanks and best of luck