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capacity as a partner or of the existence of a partnership and | | without use of partnership assets, is presumed to be separate | | property, even if used for partnership purposes. |
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| | | (This is Section 204 of the Uniform Partnership Act (1997).) |
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| | | 1. Section 204 sets forth the rules for determining when | | property is acquired by the partnership and, hence, becomes | | partnership property. It is based on UPA Section 8(3), as | | influenced by the recent Alabama and Georgia modifications. The | | rules govern the acquisition of personal property, as well as | | real property, that is held in the partnership name. See Section | | 101(9). |
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| | | 2. Subsection (a) governs the circumstances under which | | property becomes "partnership property," and subsection (b) | | clarifies the circumstances under which property is acquired "in | | the name of the partnership." The concept of record title is | | emphasized, although the term itself is not used. Titled | | personal property, as well as all transferable interests in real | | property acquired in the name of the partnership, are covered by | | this section. |
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| | | Property becomes partnership property if acquired (1) in the | | name of the partnership or (2) in the name of one or more of the | | partners with an indication in the instrument transferring title | | of either (i) their capacity as partners or (ii) of the existence | | of a partnership, even if the name of the partnership is not | | indicated. Property acquired "in the name of the partnership" | | includes property acquired in the name of one or more partners in | | their capacity as partners, but only if the name of the | | partnership is indicated in the instrument transferring title. |
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| | | Property transferred to a partner is partnership property, | | even though the name of the partnership is not indicated, if the | | instrument transferring title indicates either (i) the partner's | | capacity as a partner or (ii) the existence of a partnership. | | This is consonant with the entity theory of partnership and | | resolves the troublesome issue of a conveyance to fewer than all | | the partners but which nevertheless indicates their partner | | status. |
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| | | 3. Ultimately, it is the intention of the partners that | | controls whether property belongs to the partnership or to one or | | more of the partners in their individual capacities, at least as | | among the partners themselves. RUPA sets forth two rebuttable |
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