So, your house has been sold and you are required to hand over the original title deed to the conveyancing attorney. The property is not burdened with a bond over it. After a diligent search, you discover that your original title deed is lost. However, the original title deed is required at the Deeds Office to transfer the property to the purchaser. What now?
Before the transfer takes place, the owner (seller) must make a written application to the registrar of deeds, requesting a certificate of the registered title (CRT) of the land in terms of Section 38 of the Deeds Registries Act 47 of 1937.
The application must be accompanied by an affidavit attested to by the owner of the property.
Upon receipt of the application and affidavit, the registrar of deeds must publish a notice that he/she intends to issue the certificate of registered title. The notice must be published in two consecutive ordinary issues of the Government Gazette and two consecutive issues of a newspaper printed in the area where the property is situated. The owner of the property is responsible for the expenses related to the publishing of the notice in the Government Gazette, the newspapers, and the attorney’s costs in drafting the application and affidavit on behalf of the owner.
The draft certificate of the registered title must lie open for inspection at the Deeds Office, and after six weeks have elapsed, the certificate will be lodged for examination by the registrar. Should the registrar not receive any objections from the public or any interested party regarding the issuing of the certificate of registered title, the registrar will issue the certificate of title subject to all conditions, servitudes, leases and any other encumbrances that may exist in respect of the property.
The issued certificate of title would now serve as the title deed of this property, thus the transfer process of the property may proceed.
In terms of Section 38, the above application may further be used when the original title deed is either destroyed, incomplete or unserviceable, for example, if a page/pages are missing, illegible, or torn.
Section 38 may further be utilised to issue a certificate of registered title, should several title deeds (all registered in the same owner’s name) be lost or destroyed. One certificate of registered title will be issued in respect of all the title deeds that have been lost or destroyed.
If the Deeds Office copy of the title deed is lost or destroyed, but the owner’s copy is not lost or destroyed, the provisions of Section 38 cannot be invoked and the owner’s copy must be utilised to reproduce the Deeds Office copy.
Documents relating to properties are very important and thus need to be safely kept and protected from any harmful weather or other harmful elements that may destroy the document or render it unserviceable.
THE PRACTITONERS GUIDE TO CONVEYANCING AND NOTARIAL PRACTICE (ALLEN WEST)
DEEDS REGISTERIES ACT 47 OF 1937
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 adviser for specific and detailed advice. Errors and omissions excepted (E&OE).