Press & The Law

MORTGAGES REFUSED OVER INVASIVE WEED (THE TELEGRAPH)

Home buyers are being denied a mortgage by banks and building sites because the property they are trying to purchase has been affected by an invasive garden weed. Mortgage lenders claim Japanese knotweed, which is capable of pushing through concrete, poses a risk to the structure and fabric of the building, and so reduces the value of a property

By Richard Gray, Science Correspondent

Sellers have been forced to spend thousands of pounds eradicating Japanese knotweed from their land after finding their homes had become virtually unsellable because potential buyers were being turned down for mortgages. In some cases, banks have even refused to lend on properties where the plant has been found growing on neighbouring land. They claim Japanese knotweed, which is capable of pushing through concrete, poses a risk to the structure and fabric of the building, and so reduces the value of a property. Home owners attempting to sell their properties have seen more than £10,000 wiped of the value of their property because of the presence of the weed. All of the main banks contacted by The Sunday Telegraph, including Santander, Lloyds Banking Group, and Barclays, said they would now turn down mortgage applications if Japanese knotweed is deemed to threaten a property.

BANKS PULL PLUG ON MORTGAGES AFTER DISCOVERY OF JAPANESE KNOTWEED
SIAN BOYLE Published: 07 October 2013

Japanese knotweed, the invasive plant which is indestructible to poison, fire and concrete, is now costing many Londoners a mortgage. Those looking to buy or sell homes are seeing deals fall through at the last minute upon the discovery of the weed, and others have been told that their homes have plummeted in value after insurers refused to pay out, a BBC programme found. Matthew and Suzie Jones discovered knotweed growing in their house and its value was subsequently cut in half from £300,000. Speaking to BBC One’s Inside Out programme, Mrs Jones said: “We were told we’d have to have our house torn down. You don’t expect that when you’ve just bought a brand new home. I was in floods of tears.” Japanese knotweed is difficult to eradicate, not just because of the size and speed at which it grows, but because it can block drains, damage foundations and can grow from a pea-sized amount — much to the frustration of those who have dug up their entire gardens to banish it. Natalie Waterworth told the programme that she was about to buy her first home when her bank was made aware of Japanese knotweed on the premises and it withdrew the mortgage. She said: “The knotweed was about 90 feet fromthe house but in a few weeks it had advanced 60 feet, and then 30. I wouldn’t try to buy a property that has Japanese knotweed — it’s doomed to fail.” To counter the problem, specialist Japanese knotweed agencies are now working with councils, mortgage lenders and homeowners by devising treatment plans backed by warranties to allow sales to proceed.

THE LAW

In the UK there are two main pieces of legislation that cover Japanese
Knotweed. These are shown below:

Wildlife and Countryside Act 1981

Schedule 9, Section 14 of the Act, it is an offence to plant or otherwise
cause the species to grow in the wild.

Section 14(2) of the Wildlife and Countryside Act 1981 states that “if any person plants or otherwise causes to grow in the wild any plant which is included in Part 2 of Schedule 9, he shall be guilty of an offence”. (Japanese knotweed is a Schedule 9 listed plant).

Environmental Protection Act 1990

Japanese Knotweed is classed as ‘controlled waste’ and as such must be disposed of safely at a licensed landfill site according to the Environmental Protection Act (Duty of Care) Regulations 1991. Soil containing rhizome material can be regarded as contaminated and, if taken off a site, must be disposed of at a suitably licensed landfill site and buried to a depth of at least 5 metres.
According to the Environmental Protection Act (EPA) 1990 controlled waste, must be disposed of at appropriately licensed landfills.Japanese knotweed plant material and/or any knotweed contaminated soil which you discard, intend to discard or are required to discharge is likely to be classi_ed as controlled waste.

Section 34 of the EPA imposes a duty of care on persons who produce, import, dispose of, or treat controlled wastes. The movement off site of controlled waste must be covered by a waste transfer notes. The transfer notes must be completed and signed, giving a written description of the waste and a waste code. This description must be comprehensive enough to allow the receiver of the waste to handle it in accordance with their own duty of care. These provisions are set up in the Environmental Protection (Duty of Care) Regulations 1991.

Section 33 of the EPA states that it is an offence to deposit, treat, keep or dispose of controlled waste without a licence. There are exemptions to waste management licence’s stated in the Waste Management Licensing Regulations 1994. The Environment Agency Code of Practice 2006 states in accordance with their Enforcement and Prosecution Policy, failure to have a waste management licence or permit, when dealing with the knotweed growth on site, would not normally be prosecuted if the Agency’s Code is followed.

An offence under the Wildlife and Countryside Act can result in a criminal prosecution. An infringement under the Environmental Protection Act can result in enforcement action being taken by the Environment Agency which can result in an unlimited fine. You can also be held liable for costs incurred from the spread of Knotweed into adjacent properties and for the disposal of infested soil off site during development which later leads to the spread of Knotweed onto another site.

As well as the two items of legislation outlined above, third party litigation for damages may be sought by adjacent landowners when Japanese knotweed is allowed to spread onto other property.

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