CONVEYANCES INVOLVING LIMITED PARTNERSHIPS



10.1 Governing Law



Georgia has three limited partnership statutes in effect. O.C.G.A. Sections 14-9A110 through -130 govern limited partnerships formed prior to February 5, 1952, that have not elected to be governed by one of the other statutes, O.C.G.A. Section 14-9A-1 through 99 govern limited partnerships formed after February 15, 1942, and before July 1, 1988, that have not elected to be governed by the Georgia Revised Uniform Limited Partnership Act (“GRULPA”). GRULPA (O.C.G.A. Sections 14-9-100 through -1204) governs limited partnerships formed on or after July 1, 1988, and those formed earlier that have elected to be governed by GRULPA. To the extent the law governing a limited partnership with an instrument in the title affect matters of title, the examiner should first determine which law governs the limited partnership.

10.2 Authority



(a) The statute governing limited partnerships formed prior to February 15, 1952, does not address in detail the authority of partners to act for the partnership. O.C.G.A. Section 14-9A-123(a) provides that “only the general partners shall be authorized to transact business, sign for the partnership, and bind the partnership.” It may generally be expected that, in cases not expressly provided for in a limited partnership statute, the provisions of the general partnership statute (O.C.G.A. Sections 14-8-1 through -43) would govern. Accordingly, the examiner should consider the agency powers of general partners discussed in Chapter 11 of these Standards.

(b) The statute governing limited partnerships formed between February 15, 1942, and July 1, 1988, expressly provides (O.C.G.A. Section 14-9A-70) that each general partner of such a limited partnership has all of the rights and powers, and is subject to all of the restrictions and liabilities, of a partner in a general partnership, although these provisions may be altered by the terms of the limited partnership agreement. Accordingly, the examiner should consider the agency powers of general partners discussed in Chapter 11 of these Standards. The examiner should take note, however, that O.C.G.A. Section 149A-70 requires the written consent or ratification of all of the limited partners in order for any general partner or all of the general partners to have authority to “do any act which would make it impossible to carry on the ordinary business of the partnership.” If the examiner is unable to establish to the examiner’s satisfaction, through affidavit or otherwise, that the conveyancing of the real property at issue would not have such effect, the examiner may reasonably require evidence that all of the limited partners have so consented.

(c) GRULPA also refers to the general partnership statute to supplement the powers of general partners expressly stated in GRULPA (O.C.G.A. Section 14-9-403(a)). Accordingly, the examiner should consider the agency powers of general partners discussed in Chapter 11 of these Standards.

10.3 Conveyancing by Limited Partnerships


(a) The statute governing limited partnerships formed prior to February 15, 1952, does not address directly the manner in which such limited partnerships may hold or convey title to real estate. Accordingly, the examiner should consider the agency powers of general partners discussed in Chapter 11 of these Standards as well as former Standard 10.1, which was to the effect that real property acquired by a general partnership and held in the general partnership name should be conveyed in such name by an instrument executed by all general partners or joint venturers unless otherwise provided by recorded instruments executed by all partners or joint venturers.

(b) The statute governing limited partnerships formed between February 15, 1952, and July 1, 1988, provides that “a limited partnership may acquire property of any nature and take title thereto in the name of the partnership.” (O.C.G.A. Section 14-9A-21).

(c) GRULPA (O.C.G.A. Section 14-9-106) provides in relevant part as follows:

“Any estate in real property may be acquired in the name of a domestic limited partnership or of a foreign limited partnership (whether or not such foreign limited partnership has procured, or is required under the provisions of Code Section 140-9-902 to procure, a certificate of authority to transact business in this state), and title to any estate so acquired shall vest in the domestic or foreign limited partnership itself rather than the partners individually . . . . “Instruments executed by a domestic or foreign limited partnership conveying an interest in real property located in this state, when signed on behalf of such limited partnership by a person purporting to be a general partner of such limited partnership, shall be presumed to have been duly authorized by and binding upon such limited partnership unless contrary limitations on the authority of the general partner are set forth in the certificate of limited partnership and a copy of the certificate of limited partnership certified by the Secretary of State is filed in the office of the clerk of the superior court of the county where the real property is located and recorded in the book kept by such clerk for statements of partnership pursuant to Code Section 14-8-10.1.”

Accordingly, subject to the other provisions of these Standards, the signature of only one general partner of a GRULPA-governed partnership is required on a conveyancing instrument.

(d) If a limited partnership governed by GRULPA improperly executed an instrument in the chain of title and the partnership has terminated and a certificate of cancellation has been filed with the Secretary of State, the examiner should consider O.C.G.A. Section 14-9-805, which provides that “deeds or other transfer instruments requiring execution after the filing of a certificate of cancellation by a dissolved limited partnership may be signed by any person who had authority to wind up the dissolved partnership under the provisions of subsection (a) of Code Section 14-9-803.”

10.4 Foreign Limited Partnerships and Foreign General Partners


Foreign limited partnerships transacting business in this state on or after July 1, 1988, are governed by the foreign limited partnership provisions of GRULPA. O.C.G.A. Section 14-9-907 provides that “the failure of a foreign limited partnership to obtain a certificate of authority does not impair the validity of any contract or act of the foreign limited partnership.” Accordingly, there should be no need for the examiner to establish whether a foreign limited partnership was qualified to do business in this state at the time it acquired or conveyed real property. If a general partner of a limited partnership with an instrument in the title is a foreign corporation, the examiner should take note of O.C.G.A. Section 14-2-1501(b)(13), which provides that “Owning (directly or indirectly) an interest in or controlling (directly or indirectly) another entity organized under the laws of, or transacting business within, this state” is an activity that does not constitute transacting business for purposes of requiring the foreign corporation to qualify to do business in this state.

10.5 Mergers


If the effect on title of a merger of a GRULPA-governed limited partnership appearing in the title is relevant to the examination, the examiner should consider O.C.G.A. Section 14-9-206.1(f), which provides in part as follows: “When the certificate of merger required by subsection (b) of this Code Section is effective, then for all purposes of the law of this state: (1) the surviving entity shall thereupon and thereafter possess all of the rights, privileges, immunities, franchises and powers of each of the merging domestic partnerships, and all property, real, person and mixed . . . shall be taken and deemed to be transferred to and vested in the surviving entity without further act or deed; and the title to any real estate, or any interest therein, vested in any of the merged domestic limited partnerships shall not revert or be in any way impaired by reason of such merger.”

10.6 Limited Liability Limited Partnership


In regard to a conveyance by or into a limited liability limited partnership, the examiner should consider O.C.G.A. Section 14-8-2(6.1) which provides that a limited liability limited partnership is a limited partnership that has elected to be a limited liability partnership. The examiner should further consider O.C.G.A. Section 14-8-63(b) which provides that the name of a limited partnership that is a limited liability limited partnership shall contain the words “limited liability limited partnership” or appropriate abbreviation such as “Ltd.” for “limited” or the abbreviation “L.L.L.P” or the designation “LLLP” as the last words or letters of its name.