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Published 1 abril 2016
Deeds (including leases) should never be backdated, i.e. completed with a date earlier than the date on which the parties agree it is to be completed, which must not be before it has been executed and delivered. Backdating is occasionally suggested as a way of 'curing' a perceived timing issue, or to record a situation that has already occurred.
Tenants frequently go into occupation before a lease is completed, and in these circumstances it can seem obvious that the formal lease, once it is ready to be completed, should be backdated to reflect the date the arrangements started in earnest.
However, the law of unintended consequences can mean doing just that could be construed as fraud and even forgery. There is a legal presumption that the date appearing in a deed is the date it took effect, and inserting in a lease a date which pre-dates signing and/or delivery could give the false impression that the lease took effect on a different date.
The date on which a deed takes effect will usually be a crucial factor in determining when particular rights, liabilities, or benefits are acquired or terminated and it will often have implications from a tax perspective (including SDLT). As such, it is important that the date included in a deed is factually accurate.
The best way to address these issues will vary depending on the particular circumstances at the time. To avoid taking unnecessary risks and any inaccurate dating shenanigans contact us to discuss how a particular scenario might best be approached.
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