It is a rapacious weed that strikes fear into the hearts of homeowners because of its power to ‘blight gardens and damage structures’.
So John Busby and Dr Marie Donnelly were furious to discover Japanese knotweed in the grounds of their newly purchased dream home.
They have now been granted permission to sue the previous owners of the house, Mark and Kim Blair, after it emerged they had known about the perennial plant and tried in vain to eradicate it.
They knew it was a ‘pest plant’ and had tried chopping it back, spraying it with weedkiller and strimming it.
But they did not make any mention of the invasive weed – which can grow at a rate of eight inches a day and penetrate concrete – when they were selling Firth Lodge in the village of Auchendinny, Midlothian, in 2021.
Buyers: Dr Mairi Donnelly and John Busby have been given the go-ahead to sue
Broken dream: The luxury home in the village of Auchendinny
This week a sheriff ruled that the Blairs should have declared the Japanese knotweed during the sale instead of claiming that the property, which boasts private fishing rights on the River Esk, was ‘not affected by rot, damp, woodworm or other infestations’.
Sheriff Christopher Dickson gave permission to Mr Busby and Dr Donnelly to pursue their legal action, saying the sales contract meant the sellers had to disclose that the property was not affected by matters that could adversely affect it.
He said the case was likely to hinge on whether the Blairs knew there was an ‘infestation’ of the non-native plant in the house’s six-acre garden and grounds.
In his written judgment after a hearing at Edinburgh Sheriff Court in January, he said: ‘The defenders admit that they were aware, during their ownership of the property, that the property contained JK (Japanese knotweed).
‘The pursuers aver that the property contained a substantial amount of JK, including JK that was near to the dwelling house on the property.
‘The defenders do not, however, admit that they were aware that there was a JK ‘infestation’ and in the circumstances it may prove necessary, if the issue cannot be agreed, for evidence to be led that the JK that the defenders were aware of on the property was indeed a JK ‘infestation’.’
Firth Lodge, a four bedroom detached house, was bought for £602,500 in May 2021.
The particulars for the ‘spacious and distinctive’ converted lodge made much of the ‘rural location’ and outdoor space.
The previous owners Kim and Mark Blair failed to declare they were aware of the presence of Japanese Knotweed
The invasive plant, Japanese knotweed can grow eight inches in a day
They stated: ‘The property includes a large deck to the rear, overlooking the land, with a bar including pizza oven and barbecue area for socialising to the side, with a driveway to the front.’
The buyers ‘quickly became aware of the presence of Japanese knotweed’, which had not been mentioned when solicitors exchanged missives during the conveyancing process and decided to take legal action.
The judgment stated: ‘It was a matter of agreement between the parties that: JK is a pest plant which blights gardens and damages structures; the defenders were aware, during their ownership of the property, that the property contained JK; and that the defenders had attempted to treat the JK on the property by cutting it back, strimming it and spraying it.’
Applying to have the action dismissed, the Blairs had argued that ‘it was clear that ‘other infestation’ did not cover large plants that invade the garden and prove difficult to remove’.
But the sheriff said: ‘I considered the presence of JK on a property in sufficient numbers could properly be described as an infestation of JK and that a JK infestation was a harmful thing or matter which could commonly adversely affect a property.’
A date will now be set for a further hearing.