A furniture designer who found Japanese knotweed behind the garden shed after moving into his £700,000 dream home has successfully sued the seller, leaving him facing a £200,000 court bill.
Jonathan Downing, 30, bought his three-bedroom house in wealthy Prince George Avenue, Raynes Park, south-west London, from chartered accountant Jeremy Henderson, 41, in August 2018.
Mr Downing, who trained at the world-renowned Chippendale International School of Furniture, planned to set up shop on the Edwardian terrace, as well as build a workshop in the garden.
But while cleaning up the yard shortly after moving in, he discovered Japanese knotweed canes behind a large St. John’s Wort bush growing beside the shed.
A furniture designer who bought his £700,000 dream home only to find Japanese knotweed hiding behind the garden shed (pictured) has successfully sued the seller
Jonathan Downing (left), 30, bought his three-bedroom house in wealthy Prince George Avenue, Raynes Park, south-west London, from chartered accountant Jeremy Henderson (right), 41, in August 2018 .
Japanese knotweed is an invasive species, known for its propensity to spread and damage building structures, as well as the difficulty and expense of getting rid of it.
Mr Downing later sued the previous owner, demanding he pay damages for misrepresenting whether there was knotweed in the property when he sold it.
Mr Henderson had answered ‘no’ to the question on the Property Information Form TA6 asking whether the property had been affected by knotweed and argued that he ‘reasonably believed’ he was telling the truth when he did it.
He claimed he couldn’t see the knotweed because of the large bush, which also likely stunted the growth of the weed before it did when the shrub was cut down after Mr Downing moved in .
But Judge Jan Luba KC dismissed his case and handed him a bill for costs and damages of over £200,000 after finding he did not honestly believe his property had not been affected by the knotweed when he sold it.
Outlining the case in Central London County Court, Mr Downing’s solicitor Tom Carter told Judge Luba an expert had said the weed had likely been in the garden since at least 2012.
Mr Henderson had himself moved in in 2015, before selling to Mr Downing in 2018, specifically stating in the sales forms that there was ‘no’ knotweed affecting the property.
Mr Downing, who trained at the world-renowned Chippendale International School of Furniture, planned to set up shop on the Edwardian terrace (above), as well as build a workshop in the garden
“The defendant could have checked ‘Yes’, ‘Unknown’ or ‘No’ – by checking ‘No’, the defendant chose to positively affirm that there was no knotweed on the property and thus made a misrepresentation,” Mr. Carter said.
Mr Downing has sued for £32,000 to cover the costs of surveying and excavating the plant, as well as the decrease in value of his house caused by the knotweed incursion.
His solicitor said there was no way for Mr Henderson to prove he had a ‘reasonable belief’ there was no knotweed present when he completed the seller’s forms.
“The defendant cannot meet its burden of showing that it had reasonable grounds to believe that the property was unaffected by knotweed,” he said.
Giving evidence, Mr Downing told the judge that – if Mr Henderson had said it was ‘not known’ whether the property was affected by knotweed – he would have looked into it further.
But in his own testimony, Mr Henderson said he had no reason to think there might be knotweed in his garden.
“I lived there for three years and spent quite a bit of time in the garden and hadn’t seen any knotweed,” he said.
“I received an expert’s report when I moved in and it found no knotweed.
“No one identified me as a knotweed and I didn’t see any knotweed.
“The main reason is that he was hidden by the bush and it was very likely that he was hampered by the bush.”
But Judge Luba said: “It all depends on the specific facts of the act of representation and its individual circumstances.
But while cleaning up the yard shortly after moving in, he discovered Japanese knotweed canes behind a large St. John’s Wort bush growing beside the shed. Pictured: Mr Henderson outside Central London County Court
“Mr. Henderson told me under oath that he honestly believed there was no Japanese knotweed in his garden. He knew what it looked like and he hadn’t seen one in the three years he had been there. His mother was an avid gardener and she did not report Japanese knotweed to him.
“No previous owner had mentioned Japanese knotweed to him and none of the neighbors had Japanese knotweed in their garden.
“If that evidence had stood alone, he would have amply convinced me of his reasonable belief that there was no Japanese knotweed on his property.”
But he went on to say that Mr Henderson’s case had been undermined by his admission that he ‘didn’t know what was behind the shed’ where the knotweed was hiding.
The judge said his faith in Mr Henderson’s story had been further ‘shaken’ by evidence from a joint knotweed expert, which suggested the knotweed canes may have reached 2m in height at a given time and could have “overlooked the neighboring garden”.
There was also evidence that the weed had been treated with an herbicide at some point in the past, he said.
“The sole joint expert opinion is that the growth of Japanese knotweed would have been visible in the garden,” he continued.
“I wonder if Mr. Henderson honestly believed there was no Japanese knotweed affecting the property. I am not convinced that he has discharged this burden.
“Even if I am wrong and he genuinely believed the answer, he has not shown me that he had reasonable grounds to do so.
“The defendant is liable to the plaintiff for the amount of the agreed damages.”
Mr Henderson must now pay £32,000 in damages and Mr Downing’s solicitors’ bills of up to £95,000, plus his own costs, estimated at almost £100,000.
Was ordered to pay damages plus £65,000 costs as deposit within 21 days.