There has been panic regarding the amendment to regulations 68(1) and 68(11) of the Deeds Registries Act 47 of 1937, which sets out the process to follow when an original deed or mortgage bond has been lost or destroyed.

Many will know that to transfer immovable property from seller to purchaser, the original title deed and mortgage bond (if mortgaged) must accompany the transfer documents into the Deeds Office. If either, or both, deeds have been lost or destroyed, application must be made in terms of regulation 68.

Until the proposed amendment, this process has been fairly simple and not too onerous financially, consisting of a written application (accompanied with an affidavit) to the Registrar of Deeds for a new original to be issued.

However, the proposed amendment will require that in addition to the written application to the Registrar, the application and affidavit:

  • will need to be attested by a notary public (rather than a commissioner of oaths); and
  • must be advertised in the Government Gazette; and
  • must, for two weeks, be open for inspection by the public at the Deeds Registry.

This will result in additional fees and a longer, more time-consuming process.

The delays brought about by this more onerous process are potentially further reaching than just the application and receipt of the new deeds. For example, it could cause delays that result in other financial implications for parties to related property transactions which may trigger penalties or purchase price escalations. There could also be interest implications due to delays in cancelling the seller’s exiting bond finance.

The logic behind the amendment was the increase in fraudulent transactions.  However, it has just been announced that the amendment that was to become affective on 25 February 2019 has, on reconsideration, been suspended until further notice due to being impractical and the cause of undue hardship to the public.