A recent English legal case saw Mr Downing sue the seller of a house for damages for misrepresenting the presence of knotweed on the property. Knotweed is an invasive plant species that can cause damage to buildings and is notoriously difficult to remove. Mr Downing claimed that the seller had falsely stated that there was no knotweed on the property, leading him to believe that he was making a sound investment.

The case highlighted the importance of providing accurate information when selling a property and the consequences that can arise from making false or misleading statements. Under English law, a seller has a duty to disclose any material facts about the property, including the presence of knotweed. This duty is imposed by the Property Misdescriptions Act 1991 and the Consumer Protection from Unfair Trading Regulations 2008.

In this case, the court found that the seller had indeed made a false representation about the knotweed and awarded damages to Mr Downing. The amount of damages awarded took into account the costs of removing the knotweed and any loss of value to the property.

Would the same principles apply in a claim under Scottish law? Yes, the principles of disclosing material facts and the duty of care owed by the seller to the buyer would be similar in Scottish law. In Scotland, disclosure should normally be found within the terms of the Home Report and/or the seller's property questionnaire. A seller's non disclosure of the presence of such a species within the bounds of the property or even nearby, assuming this was known, could be a costly error. Knotweed in particular requires specialist spraying treatment over a programme of work that can be spread over up to 5 years. This is expensive. The buyer may also have claims for specialist report fees, inconvenience, loss of amenity, and diminution of value of the property.

At Flexlaw we have expertise in this area. Contact our Mark Harrison on 0131 202 6363 to discuss any issues arising from this article.