Condo Media - September 2023 - 29

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AN INVASIVE SPECIES
IN COMMUNITIES
BY JAKE E. MARCUS, ESQ. AND
STEPHEN M. MARCUS, ESQ., CCAL
OVER THE YEARS, pesky or latent issues such as radon,
asbestos, lead paint, pyrrhotite, and many more have
sprouted up in community associations. The latest novel
topic that community associations will have to address
could be right in your backyard as an invasive species:
Japanese knotweed (Fallopia japonica or Polygonum cuspidatum)
is tangling its way through various parts of the
United States, which has resulted in expensive treatment
plans and legal battles. Naturally, Japanese knotweed is
likely to rear its head in community associations in the
event where developers fail to eradicate its presence prior
to turnover and because it could affect shared common
areas where there are many adjoining or abutting units.
Impact on Property Value
Japanese knotweed is listed as one of the 100 worst invasive
species globally by the Invasive Species Specialist
Group. While not poisonous, it is dangerous because
it can exploit weak areas in structures/roadways if left
unchecked. The underground rhizomes can invade
small cracks and cause damage to hard surfaces, block
drains, and worsen cracks in building infrastructure.
The extensive root system can grow 10-feet deep and
laterally over 20 feet from the nearest stalk. Japanese
knotweed is uncommon during the winter months,
so treatment can be challenging; even if a small piece
is left behind or spread in other areas, it can regrow.
The unknowns surrounding Japanese knotweed and
its invasiveness have had a chilling effect on real estate.
In the United Kingdom, the mere presence of Japanese
knotweed has resulted in devaluation in property values
and mortgage/insurance rejections.
Treatment plans vary from excavation to continuous
cutting and/or herbicide treatment. These plans are
largely determined on a case-by-case basis and require
an invasive species expert. It may be difficult to determine
who should bear responsibility for treatment
and management plans, which are often meticulous,
costly, and can take years.
Litigation and Expensive Verdicts
Both the United Kingdom and the United States have
seen litigation and expensive verdicts. The U.K. case
of Ryb v. Conway Chartered Surveyors & Ors held an
inspector/surveyor liable for negligence for failing to
identify Japanese knotweed. In the U.K. case of Network
Rail Infrastructure Ltd. v. Williams & Anor, the
court held the defendants liable for nuisance. In that
case, the Japanese knotweed at issue did not actually
encroach on the claimant's land, but the court decided
that the presence of Japanese knotweed amounted to a
continuing nuisance and damage. The court reasoned
that, even though the defendants had maintained the
land for 50 years and were not responsible for the
introduction of the invasive species, they stopped treating
it, which resulted in an undesirable element in close
proximity to the claimants' property that constituted
actionable harm (the diminution in property value).
In the New York case of Inman v. Scarsdale Shopping
Center Associates, LLC, the court entered a judgment of
$535,000 for the plaintiff who claimed the defendants'
shopping center's premises allowed Japanese knotweed
to grow and damage the plaintiffs' grounds and residence
even though the defendant did not plant the knotweed
and there was no evidence indicating when and how
Japanese knotweed first appeared on the defendant's
property. In Massachusetts, in Trites v. Cricones, where
attorney John Mateus of Woburn represents the plaintiffs,
the trial court entered a $186,000 verdict for Trites
where a developer made an ill-fated decision when
instructing their contractor to mix knotweed-contaminated
loam with clean loam throughout the subdivision.
September 2023 CONDOMEDIA 29
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