INCIDENTAL SUBJECTS AFFECTING PROPERTY TRANSFERS: LOST DEEDS OF TRANSFER

by Taryn Davies Stevens • 3 MIN • 618 Words

Where a bond is registered over a property, the Bank will be in possession of the existing Title Deed. Once it is paid off however, the Bank may, on application by the client, release it to him even though the bond may not be cancelled. Alternatively, it will be retained by the Bank which, on request, will issue a safe custody receipt to the owner.

Transfers, however, are often delayed right from the start when the Title Deed cannot be found. If a Seller says he has no bond on the property, it helps tremendously to find out right away where the Deed is. Often the Conveyancer applies for the Deed in the normal way only to be told after about two weeks that the Bank does not have it. More time can be wasted tracing its whereabouts. This invariably happens when the Bank has archived the Deed somewhere and cannot trace it many years later.

It happens all too often that Title Deeds also become lost once they are no longer with a bank but have been delivered to the owner. There is no reason why this should delay the transfer, especially if the Conveyancer has access to Deeds Office records on his computer. Regulation 68 (1) of the Deeds Regulations provides that an owner may apply for a Certified Copy to replace the original deed where this has become lost or destroyed. There should be no delay in the transfer if the following procedure is adopted:

On receipt of his instructions, the Conveyancer will obtain an extract from his computer of the Deeds Office records on the property to be transferred. This will give him the Title Deed number.
He will then immediately apply for an Information Copy of the Deed at the Deeds Office. This should not take more than a few days to obtain. An exact copy of the original deed is issued in terms of Regulation 66, stamped - Issued for information only. This copy does not replace the original deed but gives the Conveyancer all the information he needs to go ahead and draw his transfer documents.
He can, at the same time, draw an official Application for a Certified Copy of the lost deed in terms of Regulation 68. The Seller will sign this when he calls to sign his other transfer documents. When the Conveyancer finally lodges his transfer documents, he will lodge this application simultaneously. The Deeds Office will authorise the replacement of the original deed when the whole set of lodgements comes up for registration.

The procedure to replace the lost deed can, in this manner, be done together with the actual transfer and no time need be lost.

Sometimes Deeds are produced to a Conveyancer in an incomplete state. Often the diagram of the property attached to it has been removed; alternatively for some reason the owner may have removed a page or two. In other cases, we have received deeds no longer stapled together and pages have often been missing. In all these cases the Deed is said to be unserviceable. It must be lodged with a similar action for a certified copy to replace it.

When a Mortgage Bond is lost, the bondholder will also have to go through the same procedure to replace it when the property is being transferred. Regulation 68 (11) provides that when the Bank files its consent to the cancellation of the Bond, it may at the same time declare that the document has been lost, but it has become standard practice for deeds offices to require replacement copies of bonds to be lodged on which the cancellation will be endorsed.

CREDIT:

Property Law Publications

John Gilchrist

082 904 1300

PROPERTYTITLE DEEDLOST TITLE DEEDTRANSFERPROPERTY TRANSFERBANK

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