REPLACING IT JUST BECAME A WHOLE LOT MORE COMPLICATED… AND EXPENSIVE…
Many a time a property owner will have misplaced his or her Holding or Title Deed for the property they intend to sell. It can also happen that on occasion a bank may have misplaced the document or it was destroyed somehow.
A process exists within the Deeds Registries Act, Act 47 of 1937, where a copy for registration purposes can be obtained in order to serve as a replacement. This is a Regulation 68(1) Affidavit and Application, more commonly known as VA. The owner or owners would be asked to sign the aforementioned Affidavit and Application before a commissioner of oaths, which document would attest to the fact that they were unable to locate the deed, it was potentially destroyed and could not be found. This would then be used to apply for a replacement copy to serve in the place of the lost title. The process was relatively easy and fast, saving the Sellers money and reducing costs. It was open to fraud and there had been instances where the system was abused and Sellers were defrauded.
At the recent conveyancing seminar conducted by Allen West, an amendment to Regulation 68(1) of the Deeds Registries Act, Act 47 of 1937 was discussed. This amendment is designed to make it harder to abuse the system, and harks back to the old process relating a VA copy. The major changes can be summarised as follow:
- ‘…the affidavit must be attested by a notary public…’;
- ‘…before the issuing of a certified copy of any deed conferring title to land or any interest therein, the applicant shall publish a notification of the intention to apply for such certified copy in an ordinary issue of the Government Gazette…’;
- ‘…Copies of deeds applied for shall be open for inspection in the deeds registry for a period of two weeks after the date of publication…’
It would now seem that the Seller or Sellers will have to appear before a Notary and sign the VA application. There is still confusion as to whether the Sellers can sign before a commissioner of oaths, who could then sign before a notary. This could be the best procedure but may not fly with the Deeds Office. Secondly, the application must be published in the Government Gazette before such application can be lodged in the Deed Office. Leading to substantial delays especially that it must, after the date of publication, be available for inspection in the Deeds Office for a further two weeks.
Only once the above procedure is completed can a transfer or bond cancellation be lodged in the Cape Town Deeds Office. This procedure, although, is good in theory, will be a nightmare in practise as it will mean that the costs related to a transfer increase and also many firms do not employ Notaries creating an extra burden. Conveyancer will also have to allow for extra time in order to comply with the process, thus leading to delays. The Minster has not considered that the Government Gazette does not publish like a normal newspaper. You cannot call the Government Gazette and then hope that it will publish the notification the next day. There are certain timelines and cut offs and turn around is usually 7 – 10 working days from date of placing the advert with them to the date when they publish. Adding to the time period, meaning that from the date of signature before a Notary, just for arguments sake, three weeks will lapse before lodgement can take place. This not taking into account the examination period within the respective Deed’s Offices.
Finally, the Chief Registrar along with the Provincial Registrars of Deeds are still to publish their circulars on the process going forward with regards the application for a VA. Leaving much confusion as the new amendments come into force as of 1 March 2019.
The ESI team will keep you updated as new information comes to light.
Sources:
Deeds Registries Act, Act 47 of 1937, Regulation 68(1) as amended.
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. Errors and omissions excepted (E&OE)