IF a duplicate certificate of Title is lost or destroyed, an application for a replacement can be made under Section 82 of the Registration of Titles Act. The application is referred to as a Lost Title Application and is done by way of a statutory declaration, which owing to its nature, has to be in conformity with section 152 of the Voluntary Declarations Act. The application is made to the Registrar of Titles.

The granting of a replacement title under this section is discretionary. It is by no means mandated that once the application is made the new title must be granted. Hence, the overarching principle is whether the circumstances outlined in the statutory declaration satisfy the registrar as to the loss or destruction of the Title.

The Lost Title Application must be made by the registered proprietor or any person claiming through him. In cases therefore where the registered proprietor has died, the Application will have to be made by his executor or where he has not left a Will by his administrator.

If the registered owner is a company, the application must be made under the seal of the company and the person making the declaration must be duly authorised officer of the company in relation to the making of the Application.

In circumstances where the registered owner of the property suffers from a disability such as mental illness or is a minor, an Application will have to be made to the court to have someone appointed as guardian in the case of minor or a committee in the case of a person of unsound mind. On the basis of that order, the person or committee of persons appointed thereunder will be entitled to make a Lost Title Application on behalf of the registered owner.

All of the persons registered as proprietors on the title must join in the application when it is being made. If for some reason one or more of the registered proprietors is unable to make the application, an explanation has to be provided to the Registrar to account for his/her absence.

In cases therefore where the property is owned jointly by two persons and one person has died, the surviving proprietor must, either before or at the time of making the Lost Title Application, also apply to have the death of the other proprietor noted on the title. In order to have the death noted on the title the surviving proprietor will have to provide the Registrar with the following:-

* Duly completed Application to Note Death

* Certified copy of Death Certificate

* Evidence that transfer tax on death has been paid on the deceased one-half interest in the property comprised in the title.

If the property is owned by the proprietors as tenants in common and one proprietor has died, the Lost Title Application in these circumstances will have to be made by the surviving proprietor along with the Executor of the estate of the deceased proprietor. This is due to the fact that where persons hold property as tenants in common, on the death of one of them, his/her interest passes to his estate and not to the surviving proprietor as in the case of a joint tenancy. The Lost Title Application will have to be accompanied by a copy of the Grant of Probate or Letters of Administration obtained in the estate as well as:-

* Duly completed Transmission Application (that is an Application by the Executor or the Administrator to be registered on the Title).

* Evidence that Transfer tax on death has been paid on the deceased interest in the property comprised in the Title.

This aspect of the Application is arguably the most important as it provides the evidence on which the registrar will make a ruling. It therefore goes without saying that this aspect of the application must be very clear and convincing. In describing the loss or destruction of the Duplicate Certificate of Title, the following must be clearly stated:

* How loss occurred: It is important to outline the circumstances under which the loss occurred. If the loss was due to a hurricane or flood this must be stated in the declaration. If the title was stolen and a report was made to the police then this report should accompany the Application. If the title was destroyed by fire then a fire report should be attached.

* Where title was last seen: The exact address of the place at which the title was last seen must be stated. This is of particular importance in instances where the duplicate was lost or destroyed outside the jurisdiction.

* By whom the title was last seen: This person is the last link to the title. It is important to note that the Titles Office normally requires an accompanying statutory declaration from all persons who last came into contact with the title (if those persons are different from the applicant).

The applicant must outline for the registrar what steps have been taken to locate the duplicate certificate of title. If there have been searches conducted or inquiries made these must be referred to in the Declaration as well as the results of those searches and inquiries.

The applicant must also state in his declaration who had access to the Duplicate Certificate of Title. There is usually a requirement for accompanying statutory declarations from these individuals where practicable.

It must be clear to the Registrar of Titles that the Duplicate Certificate of Title has not been deposited with any institution as security for any mortgage and as a result this must be expressly stated in the declaration. The applicant must also undertake to deliver the duplicate certificate of title to the registrar if it should ever come into his possession, custody or control.

After the application has been approved, the Registrar will issue a notice with instructions to advertise the application in a local newspaper. If the Duplicate Certificate of Title was lost outside the jurisdiction, there will be a provision in the notice for advertisement of the application to appear in a newspaper in the overseas jurisdiction. The new certificate of title can then be issued fourteen days after the appearance of the last advertisement in the newspaper.

Michael Jordon is an associate at Myers Fletcher & Gordon and a member of the firm’s Conveyancing Department. Michael may be contacted at michael.jordon@mfg.com.jm or through www.myersfletcher.com.