Japanese knotweed is a so-called invasive exotic and can cause many problems. The plant has strong rhizomes and, if not adequately controlled, can cause damage to buildings, pipes and roads.
There has been a growing media focus in recent years on the nuisance and damage that rampant growth of the plant can cause. As a result, home buyers are becoming increasingly aware of the potential danger of the plant's presence in the ground and may take action against the land seller if they find the plant.
Recently there has been litigation on this question. In the recently published ruling of the Subdistrict Court of the Northern Netherlands on July 26, 2022, it ruled that the seller is not liable for the presence of Japanese knotweed on a building plot.
What was going on?
On April 1, 2020, the municipality, as seller, entered into a written purchase agreement with a private buyer for a ready to build building lot located on a water-lined residential island. On May 1, 2020, the building lot was delivered to the buyer. There is a delivery report of this, signed by both parties. In it, nothing is mentioned about the presence of Japanese knotweed on the plot.
Subsequently, construction of the home began. Meanwhile, the buyer occupied the home. On May 18, 2020, the buyer informed the municipality that he had learned that Japanese knotweed had been found at the neighbor's house, and on several other lots on the island. On June 11, 2020, the buyer subsequently held the municipality liable for the presence of Japanese knotweed. The municipality rejected liability. The buyer subsequently had an expert investigate whether the plant was also present on his plot.
What does the research report say?
The September 16, 2020 survey report confirmed this. The buyer subsequently requested a quotation for sieving the soil in order to remove the Japanese knotweed. The cost is €10,285.00 including VAT. The buyer claims payment of this amount in the proceedings he has brought.1
The municipality knew that Japanese knotweed was growing in a number of places in its municipality, including in an ecological connecting zone managed by Natuurmomenten. Natuurmonumenten reported the presence of the plant to the municipality in September 2019. This growing spot known to the municipality and the building lot in dispute are several dozen meters apart and are separated by a waterway and another building lot.
Is the land delivered non-conforming?
The agreement provided that the lot was intended for the buyer to construct a detached house thereon. The buyer brought his claim for payment of the costs to be incurred on several legal bases. I will only address the most important basis: that the land is non-conforming due to the presence of the plant.
What is (non-)conformity?
By law, the sold property must conform to the contract at the time of delivery. This means, among other things, that the land has the properties necessary for its normal use. The buyer believes that the presence of Japanese knotweed prevents normal use of the plot because its roots pose a real danger to the foundation of his home. In addition, he argues that the plant was already in the ground at the time of completion.
What does the district judge rule?
The subdistrict court ruled that the buyer did not prove that the plant was already in the ground during delivery. This is not evident from the record of delivery. The expert opinion conducted is of a later date and therefore not sufficient as evidence.
Moreover, the Subdistrict Court considered that the buyer had not sufficiently substantiated that the presence of the plant prevented normal use of the building plot. Normal use here, according to the Subdistrict Court, is that a home could be built on the land in a safe manner, with a reasonable degree of durability and without substantially affecting the enjoyment of living.
The district judge acknowledged that the plant could cause serious problems on a developed plot. But it does not appear that this is the case in this instance. For example, the buyer did not substantiate that Japanese knotweed had established itself in the foundations or walls of the house or in the vicinity of underground pipes or paving on the plot. The subdistrict court ruled that there was no non-conformity of the building plot.
Did the municipality violate its duty of disclosure?
In addition to non-conformity, the buyer believes that the municipality violated its duty of disclosure by failing to inform him of the presence of Japanese knotweed on or in the vicinity of the plot prior to the conclusion of the purchase agreement.
The court ruled that there was no evidence that the municipality knew or should have known at the time of delivery that the plant was on the buyer's building plot. The fact that the municipality knew that the plant occurred in the ecological zone located dozens of meters away does not make this different. Thus, the municipality had no duty of disclosure to the buyer.
In conclusion
So it ends well for the selling party of the land because they did not know the plant was on the building lot and because the plant has no demonstrable impact on the normal use of the land.
As a seller of land/project developer, if you seriously suspect the presence of this plant, it is wise to investigate. After all, the ruling shows that the plant can cause serious problems. It is therefore advisable to include this issue in the order to the contractor for the construction and/or preparation of the land.
Because permanent removal of the plant may not be feasible, it is wise to inform the buyer that dealing with the plant found is a best-efforts obligation for you as the seller. This means that if the plant is found at any time after the delivery by a buyer on his plot, you as the seller are not easily held accountable for this. Of course provided you can prove that you have made sufficient efforts - based on the known plan - to control the plant.
Should you have any questions about this, we are of course happy to help.
[1] In addition, the buyer claims the costs incurred for the expert examination of €1,025.49 as well as legal interest, litigation costs and follow-up costs.
