Kris Olson//June 21, 2023
Stephen Marcus says “for home buyers and sellers, invasive species could be ‘new radon’”

Japanese knotweed is such a well-known menace in the United Kingdom that, if the invasive species is on your property and you try to get homeowner’s insurance, you’ll be turned away.

But in America, the plant is just beginning to creep into the public’s consciousness — and the courts.

Indeed, Woburn attorney John G. Mateus says that, since he secured a six-figure verdict on behalf of unsuspecting home buyers, out-of-state attorneys have been seeking to pick his brain after finding little case law on the subject.

Mateus only took on a childhood friend’s case after getting no takers from the members the Massachusetts Academy of Trial Attorneys, who all essentially said they wouldn’t know where to begin with such a novel matter.

His clients, Joseph and Kim Trites, bought a home in 2017 in a new development on the Pepperell-Groton line built by experienced developer Peter Cricones.

An excavating and grading contractor alerted Cricones to the presence of 5-foot-tall Japanese knotweed growth in a large pile of soil on the property. Cricones and the contractor had a basic understanding that the knotweed was highly invasive but, as a jury would later find, did not fully appreciate the problems it could cause.

As Mateus’ expert explained at trial, an unchecked knotweed infestation can be financially ruinous for homeowners, as the plant’s extraordinarily deep roots can create cracks if they reach a home’s foundation.

The only way to eradicate the threat is to remove and replace 6 to 10 feet worth of soil, disposing of it as if it were hazardous waste. If you leave an amount of knotweed as small as the size of a quarter, an infestation will come roaring back, Mateus says.

But the jury in the Trites case found that Cricones made an ill-fated decision to instruct his contractor to mix knotweed-contaminated loam with clean loam, and then use it throughout the subdivision.

The Trites visited the property at least twice before buying it, but the knotweed did not become noticeable until after they moved in. According to Middlesex Superior Court Judge Christopher K. Barry-Smith, that was the beginning of a “constant battle.”

Cricones first sent a landscaping contractor to the property to try to pull out all the weeds. After that initial effort failed, he unsuccessfully tried using a Bobcat small tractor to excavate the knotweed. The Trites then balked at Cricones’ suggestion that they use the chemical weed killer Roundup, as they planned to allow their young boys to play in the yard.

As months passed, the situation grew more tense. The Trites erected large signs and banners to alert current and prospective neighbors to the knotweed issue. At one point, John Trites parked his truck with a banner attached near a model home in the development during an open house.

Cricones responded with “coarse and unprofessional behavior,” according to Barry-Smith’s decision, making “vulgar threats” and revving the engine of his motorcycle as he rode past the Trites’ home.

After a four-day trial, jurors found that Cricones had breached the implied covenant of good faith and fair dealing in the parties’ purchase-and-sale agreement, was negligent and had created a nuisance. The Trites were awarded $186,000, the cost of repairing the lawn.

Barry-Smith then concluded that while Cricones had engaged in unfair or deceptive conduct, which entitled the plaintiffs to attorney’s fees and costs, his 93A violation was not knowing or wilful.

“The law and the obligations of a developer with respect to any invasive weed like Japanese knotweed were not so developed to support the conclusion that a developer knew of their obligation to disclose its presence,” he wrote.

The defendants’ attorney, Edward A. Prisby of Kajko, Weisman & Colasanti in Lexington, did not respond to Lawyers Weekly’s request for comment as of press time. But he has filed a notice of appeal in the case.

To Braintree attorney Stephen M. Marcus, Japanese knotweed could become the “new radon.”

The Allcock & Marcus attorney connected with Mateus after taking on clients with a similar issue. Fortunately, his clients’ landscaper recognized Japanese knotweed in loam and informed them that he would not spread it for “any amount of money,” confining the infestation to a smaller area.

Through his work in condominium law, Marcus is affiliated with a national nonprofit organization that stands ready to file an amicus brief in the Trites case if it goes up on appeal, he says. In addition, the Real Estate Bar Association has reached out to him about presenting on Japanese knotweed to help bring its members up to speed on the issue.

Given the Trites decision, future developers who violate Chapter 93A may not be “cut the same kind of break” on damages as Cricones, Marcus predicts.

He notes that while the real estate legal community may be just getting up to speed on Japanese knotweed, several Massachusetts municipal conservation commissions are “very well aware” of its insidious nature. That arguably puts developers on notice of their potential 93A liability. At some point, Mateus expects insurers will begin to account for Japanese knotweed in their policies.

In the meantime, there are legal wrinkles to be ironed out, like whether the proper measure of damages in a knotweed case is the “cost to cure,” which the jury in Trites used, or whether the diminution of the home’s value should also be accounted for, he says.

For a copy of the Decision [click here].

Written by
Stephen Marcus
Share this article
Share this article