Certificates of Title – what happens when yours goes missing?
Certificates of Title – what happens when yours goes missing?
In recent months at Carroll Fairon Solicitors we have had a run of matters assisting clients where paper Certificates of Title have gone missing. If you wish to undertake a property transaction and a Certificate of Title is in existence for that property but it has gone missing, it can be a lengthy and costly process.
What is a Certificate of Title?
A Certificate of Title is an instrument evidencing the ownership of an interest in land, executed by the Registrar of Titles, in a prescribed form. In other words, it is the deed to your house and evidence that you own it. These days title ownership is recorded on the electronic titles system, however there are two forms of paper Certificates of Title presently still in existence. The first is an A3 size parchment with beautiful cursive writing showing the history of the ownership of your property since the original grant of the land was made to the first owner. The second type of certificate in existence is an A4 light green certificate showing the current ownership of property.
The existence of paper certificates of title is rare. In 1994 Queensland introduced the electronic title system. Following the introduction of the electronic title system, each time a property transaction was registered, the paper title was cancelled and the electronic title continued.
You do not need a formal paper copy of a certificate of title for property which you have acquired after 1994. It is likely that the paper title will not exist.
How do you find out if there is a paper Certificate of Title?
A solicitor can assist you to undertake a title search of your property. You can also undertake a search through the land titles system. The fees for undertaking the search range between $20 and $30.
Once you have received your search result it will indicated whether a Certificate of Title has issued. Attached is an image of what references the title search would have.
If the word “Yes” appears beside Certificate of Title issued (as circled in the attached image), then there is a paper copy of a certificate somewhere. It will either be the A3 parchment or the A4 green sheet referred to above. You must have this document if you wish to undertake a property transaction.
What happens if it is missing?
More often than not the search for a Certificate of Title occurs during the administration of an estate. If the person who has passed away has owned the property for a very long time, at least since before 1994, and has not undertaken any property transactions such as a mortgage or other transfer on the property, then there may be a physical Certificate of Title in existence.
We find that executors of estates search high and low through their loved ones belongings to find any reference to a Certificate of Title. Sometimes these documents can be stored with a bank or other safety deposit holder. More often than not they are very difficult to find, depending on the storage system used.
If a Certificate of Title is unable to be located then there are a number of steps involved in firstly attempting to locate the certificate and thereafter applying for its cancellation. Those steps are as follows:
- Undertake all possible physical searches. You will need to swear a declaration to the titles office that you have looked in all likely places and all unlikely places and set out with as much detail as possible all of the places you have looked including the usual places where the deceased kept their safe custody and important documents;
- Your or your solicitor will need to undertake historical searches to work out when the Certificate of Title was last lodged at the titles office. In our experience, this is usually when the property was acquired many years ago. If it is a house that has been in the family for decades, then you might find that it is likely to be that initial purchase or transfer of property. An historical title search will point you in the right direction. Thereafter an historical dealing search showing you who was responsible for lodging the Certificate of Title and when it was returned to the owner is necessary. These steps must be taken because the person who undertakes the searches for you must also swear a declaration that they have checked when the title was last at the titles office and tried to track as best as possible where it might have gone after that. If there was a law firm or agent involved in the original lodgement then they may be holding the document and enquiries would need to be made of that firm;
- Prepare an Application to Dispense with/Cancel the original Certificate of Title. This application can be lodged on its own, for example if you are simply tidying up affairs and want to remove the need to find the certificate at a later date or in conjunction with another transfer. If the lodgement is prepared in conjunction with another transfer, then in most cases it relates to the transmission of the property to the executor of the estate and on that basis the application to dispense with the certificate is lodged at the same time as the application to transfer the property to the executor of the estate;
- The titles office will review the documents and if they are satisfied with the application they will send an email to the lodger of the documents advising the terms of a notice which must run in a local paper, local to the address of the property;
- You must prepare with precise terms the notice and lodge that in the required newspaper. For example, if the property is owned at the Gold Coast then the local newspaper the Gold Coast Bulletin is the appropriate newspaper. If the property was on the Sunshine Coast it would be the Sunshine Coast Daily and in Brisbane it is the Courier Mail. The titles office provides you with the exact wording for the notice and all that is required is to send the exact wording received from the titles office to the newspaper nominated by the titles office;
- You should review very carefully the proof which you receive from the newspaper. If there are any errors then the titles office will not accept it;
- Once the notice has run, a tear sheet is obtained from the newspaper being a precise copy of the page of the notice that was run. Seven days after the notice has run the tear sheet is served on the titles office who will then register the transfer of the property and cancel the Certificate of Title;
- You will receive a revised Registration Confirmation Statement which has the words “No” beside the words Certificate of Title issued. This means that the property is now on the electronic title system.
As indicated above it can be a lengthy process. There are also expenses involved including the advertising fee, which is set by the relevant newspaper and required in advance of them running the advert. Care must be taken in undertaking the right searches and preparing the correct documents to ensure that the titles office is satisfied that the certificate has actually gone missing and all efforts have been made to locate it.
If you are aware of family property that has been owned since before 1994 and you are concerned that there may be a Certificate of Title in existence and wish to cancel it, please do not hesitate to contact us. We can assist you in undertaking a search of the property to determine whether a certificate exists.
If we can assist you further in any transfer of property or if a Certificate of Title has gone missing from your family, please contact us. Having been in operation for the nearly 20 years, Carroll Fairon Solicitors holds a number of paper Certificates of Titles in our safe custody. If your family has been working with us for a number of years, it may be the case that we hold the document you are looking for. Please contact us to see if this is the case.