Invasive alien species
An issue seriously neglected when drafting agreements for the sale of immovable property, is compliance with the legislation pertaining to alien and invasive species which might be present on the immovable property sold.
Invasive alien species are defined by the Convention on Biological Diversity as follows: "They are plants, animals, pathogens and other organisms that are non-native to an ecosystem and which may cause economic or environmental harm or adversely affect human health. In particular they impact adversely upon diversity, including decline or elimination of native species through competition, predation or transmission of pathogens and the disruption of local ecosystems and ecosystem functions".
In South Africa, under the auspices of the Minister of Environmental Affairs, specific legislation was introduced on 1 August
2014 through publication of the Alien and Invasive Species Regulations, which came into effect on 1 October 2014. These regulations were promulgated in terms of the National Environmental Management: Biodiversity (Nemba) Act 10 of 2004.
A total of 559 alien species in four different categories were then listed as invasive and a further 560 species identified and listed as prohibited, which means that these species may not be introduced into the country. The list includes both fauna and flora and was further supplemented in July 2016.
The pertinent question is how the legislation impacts upon a landowner and in particular the seller of a property?
Regulation 29 requires that
If a person who holds a permit to have an alien species, sells the property on which the alien species is present, the new owner of the property must apply for a permit in terms of the legislation;
Any seller of an immovable property must, prior to conclusion of the sale agreement, notify the prospective purchaser of such immovable property in writing of the presence of any listed alien invasive species on the property.
Apart from the notification by the seller as aforesaid, it is advisable that the purchaser acknowledges, as part of the sale agreement, that he has fully acquainted himself with the extent and nature of the property as well as all vegetation thereon and that he accepts it as such. Furthermore, the seller must be required, once again as part of the sale agreement, to confirm that he is not aware of the presence of or holds any permit for any alien invasive species on the property. For further information, visit www.millers. co.za. - Fanie Botes, director: commercial at Millers Inc