Lost: My original title deed.

A transferring attorney will always ask you this question: “Are you in possession of your original Title Deed?”. If your answer to this question is no, this article will explain everything you need to know about the process that will follow when you’ve lost your original Title Deed.

The importance of an original Title Deed

An original Title Deed serves a twofold purpose. Firstly, it serves as proof of ownership of the immovable property. It proves that you are the rightful owner of the property and that you are authorized to deal with the property as you please. Secondly, it serves as a document by means of which ownership can be transferred from one person / juristic entity to another. Regulation 51(1) of the Deeds Registries Act 47 of 1937 (the “Act”) further stipulates that the original Title Deed or a certified copy thereof must always be lodged at the Deeds office in order to successfully deal with the immovable property.

It is evident that an original Title Deed is a very important document and should always be kept safe. Legislation, luckily, prescribes a certain process that can be followed to obtain a certified copy of your original Title Deed in the event that it has been lost/ destroyed.

The process to follow when a Title Deed is lost

The same regulation mentioned above, provides for the possibility of requesting a certified copy of your Title Deed from the Deeds Office when your original Title Deed is lost. Such certified copy then replaces the original Title Deed and will, for all purposes dealing with the property, be deemed to be the original Title Deed of the property.

The owner of the property must bring an application to the Deeds Office applying for a certified copy of the Title Deed. This application is regulated by Regulation 68(1) of the Act. Such application must contain the following information:

  • a description of the Title Deed
  • a statement to the effect that it has not been pledged and it is not being detained by anyone as security for debt
  • a statement that the Title Deed has indeed been lost or destroyed
  • a statement that diligent search has been affected, but still the Title Deed cannot be found
  • a paragraph stating that application is made for the issue of a certified copy of the Title Deed

Before the certified copy of the Title Deed will be issued, the Applicant must publish an advertisement of his/ her/ its intention to apply for a certified copy in a newspaper circulating the area in which the property is situated. Any objections against the application must be made within the period of inspection which amounts to 2 weeks (as calculated from the date of the advertisement). Only after this time period has lapsed, will the Deeds Office continue to issue the certified copy to the Applicant.

When the property is mortgaged

It is common practice that once property is mortgaged, the original Title Deed is held by the mortgagee for security purposes. The situation where the original Title Deed is lost, but it is also mortgaged, is regulated by Regulation 68(2) of the Act. This regulation states that an application for a certified copy is still brought by the registered owner (as above), but that the mortgagee must give its consent to the issue of a certified copy thereof.

Conclusion: Loosing an original Title Deed

Loosing an original Title Deed is something that can be prevented by implementing strict safe keeping measures. However, when you have lost your original Title Deed, do not hesitate to contact us to assist you in obtaining a certified copy thereof.

Article by Erika Oosthuizen, Attorney at Faure & Faure Inc.  For more information, contact 021 871 1200 or email contact@faurefaure.co.za

Erika Oosthuizen | Attorney. Contact Erika Oosthuizen for more information on how to replace a lost title deed.

 

Faure & Faure Inc. – Your partner in Law in the Paarl and Boland Area.

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