It happens- a title deed can get lost, stolen or destroyed. The unfortunate part is that your original title deed will be required should you want to sell, transfer, or register a mortgage bond over your property. This is due to the requirements of regulation 51(1) of the Deeds Registries Act 47 of 1937 (“the act”) which stipulates that an original title deed, or a certified copy has to be lodged to the relevant Deeds office in order for registration to be effected.
If you find yourself in this situation, regulation 68(1) of the act allows for a registered holder of the deed to apply for a replacement title deed at the Deeds Office. This process is known as a VA application.
A VA application is a formal procedure whereby the Registrar of Deeds issues a certified copy of the title deed, when the original deed has been lost or destroyed. This certified copy becomes a legally recognised duplicate as it is issued to replace the lost or destroyed deed. Upon issuing of the certified copy, the lost or destroyed original title deed will become null and void.
Prior to the issuing of a certified copy of any deed, the VA application must be published in a local newspaper which circulates in the administrative district where the registered holder’s immovable property is situated. This is done for two reasons- it firstly serves as confirmation that a public notice was placed to alert third parties of the registered owner’s intention to apply for a certified copy. Secondly, the publication of the VA application also provides an opportunity for a third party (a person who can prove that they are in possession of the original title deed) to object to the issuing of the certified copy.
There is a prescribed 14-day waiting period from date of publication. Should this 14- day period pass without any objections from third parties, then the VA application can be lodged at the Deeds office where the immovable property was registered.
What needs to be lodged at the deeds office?
Regulation 68(1) of the act requires that an application and affidavit must be lodged if any of these documents are lost or destroyed, and a certified copy is required for registration purposes:
A Deed of Transfer, Mortgage Bond, Deed of Servitude, Registered Lease, Notarial Bond, Certificate of Registered Title, Certificate of Consolidated Title or a Certificate of Real Right (or Notarial Deed of Cession) when there is an exclusive use area or a right of extension.
The application and sworn affidavit will then set out the following:
- A description of the deed and will state that the document is indeed lost or destroyed.
- It will provide a description of the circumstances to which the deed was lost or destroyed.
- It will confirm that even after a diligent search was carried out, the document cannot be found.
- That the document has not been pledged and is not kept by anyone as security for a debt owed by the registered holder of the deed. However, if the land, interest or real right held under the deed is mortgaged, then the bondholder must, in writing, confirm that the deed is not in their possession. Further, that they consent to the issuing of a certified copy.
- The affidavit will then state that the application requesting for the issuing of a certified copy for the lost or destroyed deed will be lodged to the authorised Registrar of deeds.
Who Can Bring The Application?
The registered holder of the deed can apply, or they can appoint an agent to act on their behalf (The authorised agent however will only be able to confirm, under oath, facts that are within his/her personal knowledge)
A curator can bring the application if the registered holder is a mental patient, or a trustee of an insolvent estate can apply if the registered holder is insolvent, the applicant can also be an executor of a deceased estate, a liquidator of a company, or a sheriff if the right held under the lost or destroyed title deed has been attached.
The above process also applies when a certified copy that has already been issued is also lost or destroyed. The full facts will then have to be disclosed in the application and affidavit.
The VA application process can take up to 4-6 weeks, if all required documents are in order, and the publication procedure is followed correctly.
Should you require assistance with replacing a lost, stolen or destroyed title deed, you can contact our offices. Our team of experienced Conveyancers are available to assist, and to answer any questions that you may have.
Sinokuhle Dayimani
Associate Attorney: Conveyancing Department
DKVG Tyger Valley Office | Tel: 021 914 4020