Certificates of title get lost in fires, floods, house moves and estates. Section 162 of the Land Registration Act provides the answer, and it is more straightforward than most people fear.
First: you have not lost the land
Under section 8 a certificate of title is prepared in duplicate. One copy is delivered to you; the other stays in the Registrar’s custody and is the folio of the Register. Under section 11, it is the Registrar’s duplicate that is conclusive evidence of the estate.
So losing your copy does not affect your ownership. What it affects is your ability to deal with the land, because dealings ordinarily require production of the duplicate.
Section 162(1) — who may apply
Where an instrument of title has been lost, destroyed or defaced, the application may be made by:
- the registered proprietor; or
- if the proprietor is dead, his legal personal representative.
The application is for a replacement instrument of title or an official copy. On the personal representative point, see transmission on death.
Section 162(2) — what must accompany the application
- (a) such evidence as the Registrar considers sufficient of the loss, destruction or defacing; and
- (b) particulars of all mortgages, charges or other matters affecting the land or the title.
A statutory declaration setting out how, when and where the title was lost, what searches and inquiries have been made, and confirming it has not been deposited as security. Where the loss was in a fire, flood or burglary, attach the police or other report. Where it was held by a lawyer, bank or agent, attach their confirmation.
Paragraph (b) exists because the Registrar needs to know who else may be holding or relying on the title. If your title is with a mortgagee, it is not lost — ask the lender.
Section 162(3) — the power to replace
The Registrar may replace an instrument of title by making a new instrument or official copy:
- (a) on receipt of an application made in accordance with subsections (1) and (2), together with the prescribed fee; or
- (b) on his own volition, if he considers it necessary.
Paragraph (b) matters. The Registrar can act without an application — which is what happens under section 160(6), where a person holding an instrument has absconded or refused a court order to deliver it up, and the Registrar issues a fresh instrument as in the case of a certificate of title lost or destroyed.
Section 162(4) — 14 days’ public notice
Where the application relates to a lost or destroyed instrument, the Registrar shall give at least 14 days’ notice of his intention to make a new instrument or official copy, by advertisement in the National Gazette and in at least one newspaper circulating in the country.
The advertisement is a protection against fraud. A title reported lost may in fact be held by someone with a claim — a lender, a purchaser under an unregistered transfer, a person asserting an equitable interest. The notice gives them the chance to come forward before a replacement issues.
If you hold a duplicate certificate of title as security, or under an arrangement with the proprietor, watch for section 162(4) advertisements. A replacement issued without your knowledge can be used to deal with the land. The same applies to section 158 notices, where the Registrar proposes to dispense with production of a title altogether — also on 14 days’ notice.
Section 162(5) — the replacement is as good as the original
A new certificate of title or official copy made under this section shall be:
- (a) endorsed with a memorial stating the circumstances under which it is made; and
- (b) available for all purposes and uses for which the original would have been available, and as valid for all purposes as the original.
The memorial is a permanent record on the face of the title that it is a replacement, which is a useful signal to anyone dealing with the land later.
Related situations
| Situation | Section |
|---|---|
| Title lost, destroyed or defaced | 162 |
| Title still bears the previous proprietor’s name — new certificate on request | 13(1) |
| Transfer of the whole of the land — new certificate to the transferee on request | 13(2) |
| Transfer of part — transferor may request a certificate for the residue; the transferee shall take out a new certificate | 13(3), (4) |
| A plan is registered — the Registrar may require delivery up and new certificates for each allotment | 12 |
| Proprietor wants one title for several parcels, or several for one | 15 |
| Instrument wrongly held and not delivered up | 160(6) |
Section 14 allows one certificate for several parcels even if they are not contiguous, where the Registrar considers their relative positions can be conveniently shown on the plan; the plan may be drawn on the back or on an annexed sheet; and it is not necessary to state the area of a parcel of less than 16.187 hectares — an omission which does not invalidate the certificate.
Sources
- Land Registration Act (Chapter 191) — ss 8, 11–15, 158, 160, 162; Part III Division 2
- Land Act 1996 — ss 127–129
- Mudge v Secretary for Lands [1985] PGSC 13; [1985] PNGLR 387
Before relying on anything here, read the current text of the Land Act 1996 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.