Following an article last week and the comments received, conveyancers and environmental practitioners are still wanting clarity on the practical effect of the applicability of The National Environmental Management: Biodiversity Act, 2004 (Act No. 10 of 2004) (“NEMBA”) to the sale of immovable property. After some research and enquiries this seems to be the current situation.
Section 29 of the Regulations to NEMBA reads as follows:
29. Sale or transfer of alien and listed invasive species
(1) If a permit-holder sells a specimen of an alien or listed invasive species, or sells the property on which a specimen of an alien or listed invasive species is under the permit-holder's control, the new owner of such specimen or such property must apply for a permit in terms of Chapter 7 of the Act.
(2) The new permit-holder contemplated in sub-regulation (1) will be subject to the same conditions as the permit-holder who has sold the specimen of an alien or listed invasive species, or the property on which a specimen of an alien or listed invasive species occurs, unless specific circumstances require all such permit conditions to be revised, in which case full reasons must be giving in writing by the issuing authority.
(3) The seller of any immovable property must, prior to the conclusion of the relevant sale agreement, notify the purchaser of that property in writing of the presence of listed invasive species on that property.
Its practical effect gives rise to a number of scenarios, being the following:
1. If you own an alien species (bird, animal) or own property with an alien species on it and you have a permit for it i.e. you know- (an animal) plants (on immovable property) you must let the buyer know so that he can apply for a new permit in terms of Section 7 of the Act (which could entail a survey and a certificate from an environmental practitioner) – Section 29(1).
2. If the conditions are the same as above but the buyer removes the alien plants i.e. meeting the “specific circumstances” which require permit conditions to be revised, such as subsequently removing the alien species then a survey will be necessary in order to give full reasons to the issuing authority. – Section 29(2).
3. If a seller of immovable property is aware of invasive species on the property then he/she should declare as such using a clause in the Offer to Purchase - see the example here Alien and Invasive Regulations – as it fulfils the requirements of notifying the purchaser of that property in writing of the presence of listed invasive species thereon. – 29(3) And a survey is not a necessary, legal, enforceable requirement at the moment, but will become one sometime in the future. (see infra)
4. If a seller of immovable property is unaware of invasive species on the property then he/she can declare as such using the clause referred to and there is therefore no need to have a survey conducted and a certificate issued to avoid being guilty of a punishable offence under Nemba.
In conclusion, either a declaration or a certificate is therefore required in terms of Nemba for the sale and transfer of property. Copies of the Declaration of Invasive Species forms need to be lodged with The Compliancy Officer, Biosecurity Services, Department of Environmental Affairs. The question remains as to what extent it is being enforced if at all, hence the initial (incorrect) statement that transfers cannot be prevented in the absence of either a declaration or a certificate.
Practical issues still need to be ironed out, and the Department of Environmental Affairs is still - Chapter 3 of the Act, formulating guidelines in consultation with Municipalities and other bodies. Thereby bringing more understanding to conveyancers, estate agents, environmental professionals and the broader public.