Here’s how your plants may affect your home sale
Sellers beware: the plants in your garden may at best lower the price at which you can list, and worst, land you in prison.
The Alien and Invasive Species regulations, which form part of the National Environmental Management and Biodiversity Act, became law in 2014 and will soon be enforced.
While the legislation targets mainly professionals in the environmental sphere, the regulations impact on all property owners in South Africa. This is according to Nicholas Spargo, owner of Spargo Landscape and Invasive Species Consultants, who says anyone who owns land may have one or more categories of invasive species on their property. “All invasive species need to be documented and their distribution ranges recorded. This needs to be done so that the invasive species already found in South Africa do not damage our ecosystem and economy.”
However, Claude McKirby, co-principal for Cape Town Southern Suburbs at Lew Geffen Sotheby’s International Realty, says the question of liability is not dealt with in the legislation. What it boils down to is a contractual agreement between buyer and seller in terms of who will be responsible for removing or obtaining a permit for the plant.
“We’ve obtained legal opinion on this and the consensus is the legislation isn’t clear,” he says. “It deals with disclosure of alien species and lists what must be removed and what can remain with permits, but leaves the matter of costs as a contractual responsibility between buyer and seller, rather than clearly outlining in law what costs should be carried by which party. It also doesn’t specify how a buyer or seller has to go about determining what an invasive species is.”
When this legislation is tested in court, it is sure to be watched very closely by the property industry as a whole.
“The impact of new legislation is usually always unchartered territory in terms of how the market will react,” says Ted Frazer, Seeff’s marketing manager. “Homeowners are required to sign a disclosure document with agents, confirming that they have been transparent in declaring all aspects pertaining to the property.
“This would similarly apply to alien and invasive species and the seller would need to disclose this upfront, and also make provision to have the situation remedied.”
While the act has sanctions for non-compliance, including fines and imprisonment, as well as civil liability, sellers have a duty of care to buyers, says Spargo. “The buyer can be held responsible for the costs of compliance with the act if the seller did not comply with the act and the regulations before the sale was concluded,” he says, noting it could be costly, especially for landowners of large scale-property.
But how can sellers actually be expected to know whether or not they have one or more of the over 350 alien or invasive species in South Africa on their property?
Invasive species consultants fill this void. They are required to know the impact of various invasive species on the environment, and how best to control and manage them. Those in the property industry – real estate agents and conveyancers – also need to protect their clients’ rights and limit their risk of liability by ensuring that property owners, sellers and prospective buyers are educated about the act and its regulations.
But one real estate professional who is currently completing his final two of six modules of his estate agency training – and who wished to remain anonymous – says these regulations have not been taught. “If it was done it should have been covered in the legislation part of the course, but it wasn’t,” he says, noting that a reason for this is that the learning material provided is outdated. “It is ridiculous. Everyone on the estate agency course complained about it.”
How much does it cost to enlist the services of an invasive species consultant? Spargo says the size of the property and its location are determining factors. “Generally, for an average urban residential property (approximately 2,000m²), you could expect the assessment (inclusive of completion and filing of the declaration form on your behalf) to cost in the range of R900 to R1,800, excluding travel costs and VAT,” he says. “Remember, this cost is offset by the risk which you as the property owner (or seller) are mitigating by ensuring that you comply properly with the act and its regulations.”
Joe van Rooyen, Seeff MD in Durbanville, says practical issues still need to be addressed and in terms of Chapter 3 of the act guidelines must be formed with municipalities and other role players before it can be properly enforced. Furthermore, a database of qualified inspectors must also be compiled who will be entitled to perform inspections.
“The implications of the inspection of alien species have perhaps not been thought through correctly,” he says. “If the act and the lists are implemented as it currently stands, it might result in well-known and beloved plants like the Jacarandas in Pretoria or the Oaks in Stellenbosch to be removed, which surely cannot be the intention of the act.”
Spargo points out that the legislation is not as sweeping as it appears.
“It’s worth noting that not all eucalyptus trees (bluegums) are invasive: only six species are on the invasive list,” he says. “The reason for this is that we have a serious problem with our honeybee populations. Eucalyptus trees provide a great source of nectar for bees throughout the year and so are valuable for our honeybee industry and economy.
“Not all invasive species of plants and animals need to be removed: there are a large number of these invasive species that may remain on your property if properly controlled and managed, or with a permit.”