Please note, since the publication of this article the Deeds Registries Regulations Board at a meeting on 19 February 2019, resolved to suspend the implementation of the amendments to Regulation 68 as discussed below - see Chief Registrar's Circular 01/2019 for further details.
Property Owners, Buyers and Agents: Check for the Title Deeds before 25 February!
“Time is of the essence” (legal phrase meaning ‘speed is essential, there's a deadline, this is an emergency, hurry up, do it now’ – The Phrase Finder)
You sell your house/apartment/office/factory/plot of land. You instruct your conveyancer to pass transfer to the buyer, and start dreaming of what you will do with the proceeds.
But then your lawyer says “Hang on, you didn’t give me the property’s original title deed and I need it before I can pass transfer – where is it?”
You can’t find it. The bank doesn’t have it (bondholders normally insist on keeping the title deeds of properties bonded to them as a security measure, at least until the loan is repaid in full and the bond cancelled). You didn’t leave it with your lawyer for safekeeping (perhaps you should have). You search high and low both at home and in the office, to no avail. Your spouse has a vague memory that you may have left it with Uncle Festus to lock away in his vault; but Uncle F died 10 years ago and his house and all his worldly goods are long gone. Or perhaps it was stored in your holiday home and went up in smoke (literally) in that bush fire in ’93? Panic!
Relax. There is – for a short while longer anyway – a quick and cost-effective remedy. Have your lawyer apply for a certified copy of the Title Deed. All you need to do is attest to an affidavit, say that a “diligent search” has failed to locate the title deed, and confirm that it isn’t pledged or held as security by anyone.
All being well, a few weeks and a reasonable legal fee later, the Deeds Office issues a certified copy of the title deed and the transfer proceeds.
Act now, before it all changes
What has thrown the cat amongst the pigeons is a recent change to the applicable Regulations (Regulation Gazette No. 42186 of 25 January) which will, from 25 February, require that –
- Your affidavit now has to be “attested by a notary public”. A Notary Public is a specialised attorney who “notarises” documents in a formal recording and certification process that carries more weight than would attach to a normal affidavit signed before a Commissioner of Oaths. That translates into extra cost and delay.
- Your application must now be advertised in the Government Gazette, and for 2 weeks after publication must lie open for inspection by the public at the Deeds Registry. Again, that’s more cost. And a lot more delay.
Owners, buyers and agents: Your urgent action plan
In a property transfer, time really is of the essence. The last thing any of the parties wants is delay, or extra cost. So here’s what you should do right now -
- If you own property, and whether or not you have thoughts of selling in the near future, this is a great time to confirm that you know where your original title deed is. If you can’t find it, ask your lawyer for help.
- If you are buying property, forward this to the seller or estate agent with a request that they confirm possession of the title deed or act to replace it immediately.
- If you are an agent, do the same – forward this to everyone with a property on your books (you’re doing them a favour as well as yourself).
And a note for bondholders
The new Regulations apply equally to lost mortgage bonds, notarial bonds, registered leases, holders of real rights etc, so what is said above applies equally to you.
These new requirements kick in on 25 February, so your window of opportunity here is a narrow one.
Download Regulation Gazette No. 42186 of 25 January
Jack Crook, Director at DotNews, is well known to law firms as the author of LawDotNews since 2005. Jack’s legal qualifications (LLB Lond and LLB Rhod) are supplemented by many years of practical experience in law, in marketing his own firm, and in helping other small and medium sized professional firms to prosper by using simple, low-cost, effective marketing strategies.
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Note: Form E of the Deed of Transfer has been substituted and two new forms - Form JJJ for a Lost or Destroyed Deed and Form KKK for a Cancellation of a Lost or Destroyed Deed have been added.
For what it is worth, I have it on good authority that this procedure is being implemented because of the fraud and corruption which now pervades almost all aspects of our daily life in SA. The rationale is that most fraudulent transactions in the deeds registry start with an application for a substitute copy of the holding title. The integrity of our land registration system has always rested on two pillars - the integrity of the deeds registry staff, and the integrity of the legal profession. Unfortunately both of those pillars are crumbling.
I remember having to do this many years ago, before the advertising requirement was dropped. While I understand that the reasoning for this may be to prevent fraud and reduce the huge amount of VA's lodged, the reality for Conveyancers and their clients will be delay. Who reads the Goverment Gazette? Jack writes well above, maybe we can also all call our Mortgagees and make sure they haven't lost our Deeds!
Good day. I would like help with this new application for a VA. Can a Special Power of Attorney be signed by the client which gives someone authority to sign on his/her behalf before a Notary? Do you then email it to be placed in the Government Gazette, where do I find these details?
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