The case of Downing v Henderson made national headlines last month, and is a stark reminder of the importance of answering enquiries on a sale with due care and caution.

Tristan Wark headshot

Tristan Wark

The facts were that when Jeremy Henderson sold his property to Jonathan Downing in 2018, he answered ‘no’ to the enquiry within the TA6 form – the Law Society Property Information Form, a standard set of enquiries used on most residential sales – as to whether the property is affected by Japanese knotweed.

Following discovery of Japanese knotweed on the property post-purchase, Downing claimed that the answer ‘no’ was a positive assertion there was no knotweed at the property. Unfortunately for the seller, the court agreed and Henderson was ordered to pay £32,000 in damages plus Downing’s legal costs.

Although the case factually centred on Japanese knotweed, the legal issues relate more generally to the law of misrepresentation – an untrue statement of fact or law made by one party to another, which induces them to enter a contract thereby causing loss.

Japanese Knotweed

Japanese Knotweed

Source: Shutterstock/ Erika J Mitchell

The lesson from this case is that a seller should only answer ‘no’ to whether the property is affected by Japanese knotweed if they are certain there is none on the property. Indeed, the same principle may apply to other enquiries within the TA6 where ‘yes’, ‘no’ and ‘not known’ are the possible replies. While the Law Society’s explanatory notes to help sellers fill out the TA6 form are clear, not every seller will take the necessary time to read these.

It remains to be seen how the Downing v Henderson case will change how sellers respond to enquiries; our residential team has been advising sellers to take a very cautious approach for some time.

While a more cautious approach may now generally be expected, we have to hope it does not lead to replies to enquiries becoming increasingly meaningless and unhelpful, as the Commercial Property Standard Enquiries often are – with bland replies such as “buyer to rely on its own investigation and surveys” given to rafts of questions.

Tristan Wark is a legal director in the commercial real estate team at Memery Crystal