A sale of immovable property or land (“property”) and the transfer process involved can be so stressful and the last thing you want is to realize that you have lost or destroyed your original title deed because not being in possession of your original title deed can prolong the transfer process. However, do not fret because a certified copy of the lost or destroyed title deed may be issued by the Registrar of deeds upon application by the owner of the property or duly authorized agent.
The Deeds Registries Act 47 of 1937 (“the Act”) provides that the original title deed must be lodged, except in certain instances, for the purposes of various transactions including transfer of ownership of property – (vide provisions of sub-regulation 51(2) of the Act).
What is a “title deed”? One may ask. A title deed in layman’s terms is a document executed by a duly authorized Conveyancer and attested by the Registrar of Deeds, this document serves as irrefutable proof of ownership of property in South Africa. When the owner of a property wishes to transfer ownership of the property to the buyer or purchaser (Transferee), this document is essential and must be lodged together with other prescribed documents, and if it is not lodged, the Registrar of deeds will reject the documents lodged.
Regulation 68 of the Act provides the procedure to be followed where one has lost or destroyed a title deed. Before the amendments to this regulation, Regulation 68 used to provide that where a property owner has lost or destroyed their title deed, an application, an affidavit could be lodged with the Registrar of deeds wherein the owner would state that; the title deed has been lost; the title has not been detained by anyone as security for a debt or otherwise; the title deed cannot be found despite due diligent search; and the circumstances under which it was lost or destroyed if known by the owner.
If there was a mortgage bond registered over the property, the mortgagee (normally the Bank) would sign a consent document stating that they were not in possession of the original titled deed and consented to the issuing of a certified copy of the lost title deed (this is still applicable – vide the second proviso of sub-regulation 68(2)). This was a quick and lesser stringent procedure.
However, as mentioned in the preceding paragraphs, Regulation 68 has been amended by the department of rural development and land reform. The amendments were published on government gazette No. 42813 dated 1 November 2019, and have been applicable in the Conveyancing practice from 02 January 2020.
The nature and impact of the amendments:
The provisions of Regulation 68 provides now that if the Registrar of deeds is satisfied that any deeds mentioned therein, namely sub-regulation 68(1), have been inadvertently lost, destroyed, defaced, or damaged by him or her, it shall, notwithstanding the second proviso of sub-regulation 68(2), be competent for him or her to issue a copy thereof free of charge without compliance with sub-regulation 68(1E) (a) – it will thus not be necessary for the bondholder to consent to the issuing of the certified copy of the lost title deed and to advertise in newspapers a notice of intention to apply for such copies in these instances.
Sub-regulation 68(1) (E) (a) of the Act provides that a certified copy of lost title deed referred to in sub-regulation 68(1) may not be issued unless the owner has published, substantially in the prescribed form, a notice of intention to apply for the issuing of such a copy in an issue of a newspaper circulating in the area in which the land is situated. The implications of this provision are that in addition to the Application and Affidavit contemplated in sub-regulation 68 (1), proof of publication of the prescribed notice must be submitted.
In terms of paragraph (b) of sub-regulation (1E), copies of deeds referred to in paragraph (a) shall be open for inspection in the deeds registry free of charge by any interested person, for a period of two weeks after the date of publication of the notice, during which period any person interested may object to the issue of a certified copy. As a result of these amendments, an application for a certified copy of the title may not be lodged within two weeks from the date of publication of the notice.
In conclusion and in light of the fact that the procedure to apply for a certified copy of a lost title deed has been made more stringent and prolonged, property owners who are in the process of selling their properties must ensure that they are in possession of their original title deed. If the title deed has been lost or destroyed, property owners shall immediately contact a Conveyancer for assistance with publication of the notice of intention to apply for a copy of the lost title deed to avoid any delays in the transfer process.
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By Ndivho Netsianda