What to Do if You Lose the Title Deed to Your Property?

Key Takeaways:

• Losing your property's title deed can be challenging, but solutions exist.

• Steps include searching, obtaining a certified copy, and updating public records.

• Prompt action and legal assistance from a conveyancer are vital to resolve the situation and ensure property ownership continuity.

I have lost the Title Deed to my property. Now what?

If you are even considering selling, subdividing or re-bonding your property, make sure that you are in possession of the original Title Deed. If not (or you cannot find it), approach a conveyancer ASAP to make the necessary application as soon as possible.

Firstly, don’t panic!

Have you ever lost your car keys?

Going into a flat panic because you needed to get somewhere and had no idea where on earth you had left your darn keys? Sweat dripping from your brow as you search high and low? Under tables, in-between sofa cushions….

That’s happened to me. More times than I care to admit. I once found my car keys in the deep freeze. Not my proudest moment.

Suffice it to say, that when it comes to items I don’t use on a daily basis, my memory is like a sieve. I honestly cannot remember where I have left anything. Not very responsible or adult of me. I admit. But accurate nonetheless. I always seem to end up searching in my shoe cupboard. As if that’s were all life’s lost items go. As if that’s where I find the answers to all my unsolved mysteries… partly true (being a self-confessed shoe addict it would make sense).

But the problem arises when it is something more significant. The problem arises in life changing moments - like when you finally sell your home. Everything is on track. Your purchaser’s bond has been approved and all parties are ready to begin the actual transfer process. But then da-da-da – you are asked to provide the Title Deed for your property.

You can almost feel your heart in your throat and your mouth goes desert dry. I have no recollection of where I left it.

Now, you must be kidding? Right now is not the time to be forgetting things!

Forgetting where you put your car keys is one thing. Forgetting where you filed the Title Deed to your house is something completely different.

Panic mode sets in.

But, don’t fear

All is not lost.

Regulation 68 of the Deeds Registry Act 47 of 1937, sets out the procedure to be followed when an original deed has been lost or destroyed and a certified copy needs to be obtained (also referred to as a “VA application”).

Regulation 68(1) provides that –

if any deed conferring title to land or any interest therein or any real right, or any registered lease or sublease or registered cession thereof, or any mortgage or notarial bond has become lost or destroyed, a written application for the issue of a certified copy thereof may be made and must be accompanied by an affidavit.

This regulation used to provide that where a homeowner had lost or destroyed their title deed, a simple written application and affidavit could be submitted to the Registrar and the property owner would have to set out the following:

1. the details of the deed;

2. the circumstances under which it was lost or destroyed;

3. an assurance that the deed has not been pledged or detained as security for debt;

4. an assurance that an exhaustive search has been made if the deed was lost, and

5. a statement that the original title deed will be provided to the Registrar of deeds if found.

If there was a mortgage bond over the property, the relevant bank would sign a document that they were not in possession of it and that it had no objection to the application.

And this was a relatively simple process. Not holding up the process too much. Not costing too much money. And not causing too much embarrassment.

But that was then and this is now

Until recently, applying to the Registrar to obtain a certified copy of your Title Deed had been a relatively simple process. As we have said. But that all changed as of 1 January 2020. 

In an attempt to, what we can only guess, is to combat fraud, the legislature introduced a further requirement which must be met before a certified copy of a Title Deed can be issued.

Seriously?

Amendments were effected to Regulation 68 of the Deeds Registries Act by the Department of Rural Development and Land Reform. This amendment has obviously had far-reaching consequences for homeowners who have misplaced, lost or basically forgotten where they have stored their Title Deeds (like me).

As if the situation wasn’t bad enough…… having a transfer processes being held up because of your inability to locate a document - the process to obtain a certified copy is now significantly more difficult. Just my luck.

Ok to start off - the application and affidavit process remain. So there’s no difference there. But now, there is a little more to it than that.

The amended Regulation 68(1) now requires an application setting out the following -

a) a notice of intention to apply for a certified copy must be published in the prescribed form in an issue of a newspaper circulating in the area in which the land is situated, and in the case of a notarial bond, in an issue of one or more newspapers circulating in the area of every deeds registry in which such notarial bond is registered, and

b)  copies of the deeds in respect of which the certified copies are applied for must be left open for inspection in the deeds registry free of charge by any interested person for a period of two weeks from the date of publication of the notice, during which period any interested person may object to the issue of such certified copy.

So there is the addition of the publication in the newspaper and inspection period of two weeks.

We must mention however that there have been two amendments to Regulation 68

The previous amendments published on 25 January 2019 provided that -

1. the affidavit referred to in the regulation could only be attested by a notary public. BUT, this stringent provision was considered impractical and likely to impose undue hardship on the public and was notably removed from the revised amendments, and

2. the notice of intention to apply for the certified copy or cancellation of lost bond must be published in a Government Gazette. BUT, due to the fact that Government Gazettes are not widely read by the general public, the Deeds Registries Regulations Board decided to amend the regulations to instead require publication in a newspaper circulating in the area in which the property is situated. This is far more practical considering that the purpose of the requirement of publication is to reduce the occurrence of fraudulent transactions by means of VA applications. Or so they say.

Publication and inspection requirements which were previously also imposed in respect of a Regulation 68(11) application for the cancellation of a lost bond have also seemingly been retracted. Another practical step in the right direction.

So, what are we left with?

Practically, the process can be “simplified” as follows -  

The owner, authorised agent or even the executor can obtain the “VA” copy from the Deeds Office which is then lodged for registration by the conveyancer. But before that can happen the following formalities must be met -

1. the notice for publication of the advertisement setting out the application for a VA copy (which is signed by the owner) is given to the conveyancer who will then place an advertisement in the local newspaper (circulating within the area in which the property is situated) that a copy of a title deed has been applied for;

2. any objection to such application for a VA copy must be lodged with the Registrar of Deeds within a two-week inspection period;

3. the notice for publication and application for VA copy is thereafter sent to the Deeds Office to note a caveat on the property (specifically that an application has been made for a VA copy);

4. once the two-week inspection period has lapsed (and should no objections have been received), the application together with supporting documents are lodged at the Deeds Office and a VA copy of the Title Deed is then issued, and

5. then the conveyancer, will be able to continue with the usual lodgement process thereafter.

At this point it is important to note that each deeds office has their own procedure. The one set out above is specifically the procedure to be followed for Johannesburg.

But one certainty amongst all the deeds offices remains – they all require the advertisement and the two week inspection period to lapse prior to any application for the VA copy being granted.

Ø  Side bar – if you later find the original “lost” Title Deed, from the moment the Deeds Office issued the certified copy to replace it, the original is no longer a legally valid document and cannot be used again. Also, bear in mind that if the property is bonded, it is likely that the original title deed will be with the bank and the owner will not have it in his/her possession. So it is also advisable to double-check with your bank.

It is obvious that the two-week advertising period adds considerable time to the whole process, resulting in at least an additional 7 -10 working days added on to the whole process.

The main concern however, in addition to the additional time, is the advertising costs of the new VA application process - the new process could cause delays that result in other financial implications for parties relating to property transactions i.e. triggering penalties, purchase price escalations or interest implications due to delays in cancelling the seller’s exiting bond finance.

And these additional costs, as I am sure we can all agree, should be avoided. No-one needs extra costs to be added on to one of the biggest financial commitments most of us will ever embark on.

What is our advice to you?

If you are even considering selling, subdividing or re-bonding your property, make sure that you are in possession of the original Title Deed. If not (or you cannot find it), approach a conveyancer ASAP to make the necessary application as soon as possible (and preferably before closure of the deeds offices during that year).

When in doubt, get in touch with a conveyancer and ask the questions you need to ask. For example, the attorneys at Benaters have in-depth knowledge of this process and would be happy to assist you should you find yourself in this unfortunate (yet fixable) situation.

Get in touch with Benaters today and see how we can help you with any questions or issues relating to the buying or selling of property. We are always here to help you!

Written by Alicia Koch on behalf of Benaters