The Prickly Pear of Property Sales
On the 1st of August 2014, the Minister of Environmental Affairs, Edna Molwea, published the Alien and Invasive Species Regulations which came into full force and effect on the 1st of October 2014. The Regulations request all land owners to assist the Department of Environmental Affairs (DEA) to protect and conserve our indigenous flora and fauna whilst promoting sustainable use our natural habitats. These invasive species have been listed and some 559 species have been identified across four categories as well as a further 560 species listed as being prohibited from being introduced into the country. The list species are classified as follows:
- Category 1a: invasive species that may not be owned, imported into South Africa, grown, moved, sold, given as a gift or dumped in any waterway. These species need to be controlled on your property, and officials from the Department of Environmental Affairs must be allowed access to monitor or assist with control.
- Category 1b: invasive species that may not be owned, imported into South Africa, grown, moved, sold, given as a gift or dumped in any waterway. Category 1b species are major invaders that may need government assistance to remove. All category 1b species must be contained, and in many cases they already fall under a government sponsored management programme.
- Category 2:These are invasive species that can remain in your garden, but only with a permit.
- Category 3:These are invasive species that can remain in your garden. However, you cannot propagate or sell these species and must control them in your garden. In riparian zones or wetlands all category 3 plants are classified as category 1b plants.
It is important to note that invasive species are categorised differently according to the area in which they are located as well as whether they are situated in urban or rural areas. For example in the rural areas of Kwa-Zulu Natal, the Jacaranda tree (Jacaranda mimosifolia) is classified as a category 1b invasive, meaning that it is highly invasive species that requires government assistance to remove. However, in the urban areas of Gauteng it is exempt from the regulations and no further action is required.
The main aim of this legislation is to prevent the introduction of further alien invasive species into the country conjointly curbing the spread of these species within the country. Most notably these Regulations will have severe consequences for property owners and sellers. In terms of Regulation 29(3) the seller of any immovable property must, prior to the conclusion of the relevant sale agreement, notify the purchaser in writing of the presence of any listed invasive species on the property.
Non-compliance with these regulations can result in a fine of R5 million for first time offenders and R10 million in respect of second time offenders and/or imprisonment of up to 10 years.
This is problematic, as stated above there are 559 listed invasive species and it is highly unlikely that the reasonable man would be able to identify these species. This Regulation adds to the red tape that already accompanies any property sale and it is the duty of Seller to properly indemnify himself against any claims by a purchaser who becomes aware of such invasive species on the property.
In order to do so the Seller will be required to either use the service of a qualified alien invasive expert, who will have to identify whether any such invasive species are on the property, categorise them accordingly and issue a certificate in this regard.
Alternatively, the estate agent or whomever drafts the sale agreement should include alien invasive plants and vegetation into the acknowledgement by the purchaser that he has acquainted himself fully with the nature and extent of the property that he is buying and accepts it as such. This coupled with the seller’s written confirmation that he is not aware of any alien invasive plants or that he does not hold any permits for such plants, should be sufficient enough according to the Regulations.
Such clause could read as follows:
“The Seller hereby records that to his/her best knowledge and belief there are no Listed Invasive Species mentioned in terms of the Regulations to the National Environmental Management: Biodiversity Act 10 of 2004 upon the property. It is recorded that the Seller is not sufficiently qualified to identify any Listed Invasive Species and the Purchaser hereby accepts the risk inherent in purchasing the property with any such species thereon”
These Regulations also create further requirements for property owners and not those simply wishing to sell their property and if not complied with are also fineable offences. For example a land owner is required to eradicate any Category 1a species and must allow an authorised official from the Department to enter onto the land to monitor or assist in the eradication of the species.
The above Regulations, specifically with regard to sellers of immovable property, do little to eradicate alien invasive species as all that is required from the seller is that he notify the purchaser of any such invasive species on the property. The seller need not remove the species. There is no mention in the Regulations of what the onus on the purchaser is after being notified of the existence of such species. However, depending on the category in which the plant is listed the new purchaser will be required to eradicate it (Category 1a species), control it (Category 1b species) or obtain a permit for it (Category 2 species).
Written by: Nicholas Theron BSC LLB (RHODES)