CLIVE MASANGO*
Mortgage bonds sometimes get lost or destroyed due to various factors which include misfiling, natural disasters or even accidents such as fires. However, in Zimbabwe, one has a remedy in applying for this cancellation of a lost or destroyed mortgage bond occasioned by whatever cause.
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This short piece therefore touches on the process of applying for the cancellation of a lost or destroyed mortgage bond and explores publication of a notice, the application itself and contents of the application.
This process is provided for in terms of Section 46 of the Deeds Registries Regulations, 2018.
1. Publication of notices of cancellation of lost or destroyed mortgage bond(s)
A person who intends to utilize section 46 and apply for a lost or destroyed mortgage bond needs to publish a notice of the proposed application to cancel the lost or destroyed mortgage bond first.
This notice is mandated to be in form D.R.9 (which is attached to the regulations) and should be published in both the Gazette and any other newspaper circulating in the area in which the land mortgaged is situated.
It has to invite anyone having any objections or opposition to the cancellation of the bond(s) to lodge their objections or representations (issues) in writing at the Deeds Registry within fourteen (14) days of the date of publication of that notice.
These objections should be lodged in/at the Registry in which the bond intends to be cancelled (whether Harare or Bulawayo) as specified in the notice published.
2. Application for cancellation of lost or destroyed mortgage bond
After the 14 days have lapsed, one then makes an application to the Registrar in writing. This application is made by the holder of the mortgage bond and takes the form of an affidavit.
It should be signed by the holder of the mortgage bond before a notary public.
If the holder has died or is incapacitated by one reason or the other, then it is signed on their behalf by their legal representative.
In the event that it is a company, it should be signed by a person duly appointed by the holder under a resolution which is accepted and filed by the Registrar of Deeds for a period of twelve months or certified by a notary public as being a true extract from the minutes of a meeting of the bond holder or mortgagee.
A bond holder can also authorize another person to act on their behalf through a power of attorney signed by the bond holder before a notary public.
3. What should this application contain?
The application should include a solemn declaration stating that:
- the bond has either been lost or destroyed,
- at the time of the loss or destruction, the applicant or the person they represent was the legal holder of the bond,
- to the best of their knowledge and at the time of the loss, the bond was not pledged or ceded to any other person,
- if the bond was lost, a diligent search for the bond has been made,
- he/she/it consents to the cancellation of the bond,
- they make an undertaking that if the bond is found they will transmit it to the Registrar forthwith and,
- if possible, the circumstances in which the bond was lost or destroyed.
4. Lodging
This application is then lodged/filed with accompanying documents at the respective Deeds Registry inclusive of the proof of adverts (which also become supporting documents.
It is imperative to note that if the Registrar is of the opinion that further evidence is necessary to establish the loss or destruction of the mortgage bond, he/she may call for evidence from the applicant or from any other person who had custody of the bond before loss or destruction.
Disclaimer: The information and opinions expressed above are for general information purposes only. They are not intended to constitute legal or other professional advice.
*Clive Masango is an attorney, conveyancer, and notary public with Mvhiringi & Associates Legal Practitioners. He writes here in his personal capacity. He can be contacted on +263 78 289 6099.
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