Determination of Ownership of Property

  1. Law
  2. Georgia Code
  3. Corporations, Partnerships, and Associations
  4. Partnerships
  5. Determination of Ownership of Property

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  1. Subject to subsection (d) of this Code section, property, whether real or personal, is presumed to be partnership property where:
    1. It is included as such in the agreement of partnership or described in any recorded statement of partnership under Code Section 14-8-10.1; or
    2. It is acquired in the partnership name.
  2. Subject to subsection (d) of this Code section, property is presumed to be partnership property if it is purchased with partnership funds even though the title or other interest is acquired in the name of an individual partner or partners.
  3. Subject to paragraph (1) of subsection (a) and subsection (d) of this Code section, where property is acquired in the name of an individual partner or partners without use of partnership funds the property shall be presumed to be the separate property of that individual partner or partners even though the property was used for partnership purposes.
  4. Real property and other property held of public record otherwise than in the partnership name, the ownership of which is customarily publicly recorded, shall not be deemed to be partnership property to the prejudice of a person who is not a partner and who did not have actual knowledge to the contrary.
  5. Where property was partnership property under a predecessor partnership, the business of which was continued under a new or reconstituted partnership, the presumption of subsection (c) of this Code section shall not be applicable and whether such property is to be considered partnership property of the new partnership or the separate property of the surviving members of the predecessor partnership shall be determined on the basis of the intention of the parties.
  6. Any estate in real property may be acquired in the partnership name and title to any estate so acquired shall vest in the partnership itself rather than in the partners individually. Title may be conveyed in accordance with Code Section 14-8-10.
  7. A conveyance to a partnership in the partnership name, though without words of inheritance, passes the entire estate of the grantor unless a contrary intent appears.

(Code 1981, §14-8-8, enacted by Ga. L. 1984, p. 1439, § 1.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1985, in paragraph (a)(1) "Code Section 14-8-10.1" was substituted for "Code Section 14-8-10A."

Law reviews.

- For article surveying business associations developments in Georgia from mid-1980 through mid-1981 concerning partnerships and corporations, see 33 Mercer L. Rev. 19 (1981).

COMMENT

Note to Uniform Partnership Act Subsections (a) through (e) set forth rules for determining what property is owned by the partnership. Subsections (a) through (c) provide presumptions based on whether the property is included in the partnership agreement, acquired in the partnership name or purchased with partnership funds. Subsection (d) sets forth special rules concerning property the ownership of which is customarily publicly recorded, in order to permit third parties to rely on the public record. Subsections (f) and (g) provide that the partnership may acquire property in the partnership name and state the effect of such a conveyance.

Prior Georgia Law There were no comparable provisions. Subsection (d) is generally consistent with Morgan Guaranty Trust Co. v. Alexander Equities, Inc., 246 Ga. 60, 268 S.E.2d 660 (1980) and All Florida Sand, Unincorporated v. Lawler Construction Co., 209 Ga. 720, 75 S.E.2d 559 (1953). Subsection (f), by providing that title to real property may vest in the partnership, reverses prior Georgia case law. See Hammond v. Chastain, 230 Ga. 747, 199 S.E.2d 237 (1973); Bloodworth v. Bloodworth, 226 Ga. 898, 178 S.E.2d 198 (1970).

Official UPA Subsections (a) through (e) replace the simple presumption set forth in official subsection 8(2) based on purchase with partnership funds with more specific rules for determining partnership ownership of property. Subsections (a) through (c) and (e) are based on the Alabama version of § 8, Ala. Code § 10-8-70 (Michie, 1970). Subsection (d) is based on Morgan Guaranty Trust Co. v. Alexander Equities, Inc., supra, and All Florida Sand Unincorporated v. Lawler Construction Co., supra, except that it adds the qualification concerning a third party with knowledge contrary to the public record. Subsection (f) differs from official subsection 8(3) in dispelling any doubt that the partnership may acquire and hold title to real property. This specifically reverses the holdings of cases such as Hammond v. Chastain, supra, that a partnership cannot own real property. Also, subsection (f) provides that conveyances are controlled by § 14-8-10 rather than stating that property acquired in the partnership name can be conveyed only in the partnership name. This avoids any possible conflict between §§ 14-8-8 and14-8-10. Subsection (g) is the same as official subsection 8(4).

Cross-References Conveyance of partnership property: § 14-8-10. Partners' rights in a partnership property: § 14-8-25.

JUDICIAL DECISIONS

Separate property used for partnership purposes.

- A mobile home park, acquired in the names of the individual partners without use of partnership funds, and without a "recorded statement of partnership" or writ ten partnership agreement, under O.C.G.A. § 14-8-8(c), was presumed to be the separate property of the individual partners even though it was used for partnership purposes. Harris v. Escoe (In re Woolston), 147 Bankr. 279 (Bankr. M.D. Ga. 1992).

Public filing of statement of partnership establishes existence of partnership.

- Statement of partnership is a form of express agreement and the public filing of a joint venture's statement of partnership conclusively establishes the existence of a partnership; this conclusion is supported by O.C.G.A. §§ 14-8-8(a) and14-8-10.1(f) and (g). Accolades Apts., L.P. v. Fulton County, 279 Ga. 257, 612 S.E.2d 284 (2005).

Ownership for purposes of CERCLA.

- A bank that owned a general partnership interest that owned the site in question, owned the site and, thus, was an "owner" for purposes of the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA) (42 U.S.C. § 9607). Canadyne-Georgia Corp. v. NationsBank, 183 F.3d 1269 (11th Cir. 1999).

Partnership not established by evidence.

- It was error to find the existence of a partnership between a business owner and the alleged partner, as the business was not included in any partnership agreement, described in any recorded statement, or acquired in a partnership name; furthermore, without any record evidence of a settlement agreement between the two, the court also erred in finding a valid accord and satisfaction. Yun v. Um, 277 Ga. App. 477, 627 S.E.2d 49 (2006).

RESEARCH REFERENCES

Am. Jur. 2d.

- 59A Am. Jur. 2d, Partnership, § 234 et seq.

CERCLA Liability of Parent, Subsidiary and Successor Corporation, 34 POF3d 387.

Citizens' Suit Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right-To-Know Act (EPCRA), 55 POF3d 155.

C.J.S.

- 68 C.J.S., Partnership, § 102 et seq.


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