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What to do when your title deed is lost or destroyed?

Whether you are selling or buying property, you need the original title deed. It is necessary for the purposes of drafting a deed of transfer which; records the transfer of property from one person to another; carrying over any conditions, prohibitions applicable to the disposal of the property and/or the cancellation of any registered bonds over the property. Original title deeds containing restrictions on the property may not be transferred to a buyer and/or person entitled to the property unless those conditions are met, the same applies to mortgage bonds.

In the event the original title deed is lost or destroyed the registered holder of the deed or his/her conveyancer or in the event the registered holder is deceased, mentally incapable or insolvent, the registered holder’s legally recognised representative, may lodge an application to the registrar of deeds to obtain a certified copy of the deed. The applicant for a certified copy needs to make a written application accompanied by an affidavit deposed to by the registered holder or any other person in whose custody the deed may been before the lost or destruction which affidavit must contain the following:

• the description of the deed;
• statement that the deed has not been pledged and is not being detained by anyone as security of debt or otherwise;
• statement that it is actually lost or destroyed and cannot be found after a diligent search and
• a description of the circumstances under which the deed was lost or destroyed.

Where there is a mortgage bond registered over the property and the mortgagee (the lender) is not in possession of the deed, the consent of the mortgagee is needed in addition to the affidavit mentioned above. The mortgagee must make a statement in writing confirming that the deed is not in his/her possession and that he/she consents to the issuing of a certified copy. The same applies in the event the bond has been ceded or rights to the property were conferred to another person, in either situation the consent of such other person is needed. The registrar of deeds issues a copy as requested once he/she is satisfied that the deed in question has been inadvertently lost, destroyed or defaced and that no good reason to the contrary exists.

Once a certified copy is issued, the original deed if found becomes null and void and the certified copy replaces the original deed. However, when there are joint owners to property, and the original deed is lost or destroyed, one of the co-owners may apply to the registrar of deeds for a certificate of registered title instead of a certified copy of the original title deed. The certificate of registered title is only issued in respect of that co-owner’s share in the property and once the certificate is issued, the registry duplicate of the lost deed is then endorsed to reflect the issue. If the original title deed is found and produced to the registrar of deeds the deed is then endorsed to reflect the same endorsement as contained in the registry duplicate.

Keep in mind whether you are buying or selling property the original deed must be in place and submitted to the conveyancer and in the event it is not, contact your conveyancer to assist you.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.