[WSBARP] Excise Tax on Transfer & Lease Question
Tom J. Westbrook
tjw at w3net.net
Thu May 29 11:54:11 PDT 2014
Not sure a Landlord will be determined to be a business owner, but here’s
a fairly recent case that references other cases that might help you find
the answer.
Smith v. Stockdale, 166 Wash. App. 557, 568, 271 P.3d 917, 924 review
denied, 174 Wash. 2d 1013, 281 P.3d 687 (2012)
In Washington, the possessor of land has a duty of care to persons on
their property based on the entrant's common law status as an invitee,
licensee, or trespasser. Curtis v. Lein, 150 Wash.App. 96, 103, 206 P.3d
1264 (2009), rev'd on other grounds, 169 Wash.2d 884, 239 P.3d 1078
(2010). A person is an invitee if he or she is a business visitor invited
on the property to conduct business with the possessor of the land. Younce
v. Ferguson, 106 Wash.2d 658, 667, 724 P.2d 991 (1986) (quoting
Restatement (Second) of TortsS § 332 (1965)). A customer is entitled to
expect that the business owner will exercise reasonable care to make the
premises safe for his or her entry. Tincani, 124 Wash.2d at 138–39, 875
P.2d 621 (quoting Restatement § 343 cmt. b). This duty requires the
business owner to inspect for dangerous conditions, followed by such
repair, safeguards, or warnings as may reasonably be necessary for the
customer's protection under the circumstances. Id. at 139, 875 P.2d 621
(quoting Restatement § 343 cmt. b). This duty extends throughout the area
that the customer reasonably believes is open to him or her. Id, at 140,
875 P.2d 621.20 ¶ 37 A person is a possessor of land if he or she is(a) a
person who is in occupation of the land with intent to control it or(b) a
person who has been in occupation of land with intent to control it, if no
other person has subsequently occupied it with intent to control it, or(c)
a person who is entitled to immediate occupation of the land, if no other
person is in possession under Clauses (a) and (b).Ingersoll v. DeBartolo,
Inc., 123 Wash.2d 649, 655, 869 P.2d 1014 (1994) (quoting Restatement §
328E).21 ¶ 38 Significant here, a property owner does not have a duty to
protect visitors from dangers on adjacent lands. McMann v. Benton County,
Angeles Park Communities, Ltd., 88 Wash.App. 737, 742, 946 P.2d 1183
(1997).
Also, this one deal with natural conditions.
Tincani v. Inland Empire Zoological Soc., 124 Wash. 2d 121, 135, 875 P.2d
621, 629 (1994)
We agree with the Swanson court that a landowner has no duty to warn
licensees about open and apparent dangers from a natural condition. As
discussed below, a separate set of duties governs a landowner's duties to
protect invitees from such dangers. However, we disagree with Swanson that
natural conditions constitute open and apparent dangers as a matter of
law. See Swanson, 59 Wash.App. at 314, 796 P.2d 1291. The phrase “open and
apparent” assumes knowledge on the part of the licensee. Whether a natural
hazard is open and apparent depends on whether the licensee knew, or had
reason to know, the full extent of the risk posed by the condition. That
is a question of fact.
Hope this helps.
Regards,
Tom
From: wsbarp-owner at lists.wsbarppt.com
[mailto:wsbarp-owner at lists.wsbarppt.com] On Behalf Of Eric Nelsen
Sent: Thursday, May 29, 2014 9:45 AM
To: wsbarp at lists.wsbarppt.com
Subject: RE: [WSBARP] Excise Tax on Transfer & Lease Question
Jodi, I haven't handled this specific issue in a lease before, but the
basic truth for any landowner should apply: no matter what you do, any
injured plaintiff is going to sue both the record title owner and the
party in actual possession & control of the land. I think that at best,
all the landlord can do is insure against the risks, maybe consider also
requiring tenant to indemnify landlord in the lease (probably mostly
useless since residential renters aren't likely to have deep pockets).
I don't think waterfront qualifies as "attractive nuisance," if I remember
my law school cases. I don't think a natural condition can be an
attractive nuisance--it has to be something that is either an alteration
to the land, such as a gravel pit, or an improvement, such as a swimming
pool. So I think the "fall in the water" scenario for waterfront is under
standard slip-and-fall principles, which means that the level of duty of
care toward an individual on the land varies based on their status as
invitee, licensee, or trespasser; and principal liability falls on the
person with possession & control of the land (the renter), but the title
owner can still be on the hook if the duty to maintain & repair the
condition that caused the accident remains with the landlord. For a
residential renter, I think a lot of liability will remain with the
landlord because the resident isn't likely to be required to deal with
major maintenance of the land. Landlord should make sure there are no
unavoidable slippery or treacherous conditions near the water, have
barriers and/or warning signs in areas where slippery/dangerous conditions
aren't correctable, might have an express warning in the lease with a
capitalized & boldface waiver and indemnity as to accidents relating to
the water, etc. Bottom line, it's a risk management issue, and the
standard tools to deal with that are insurance policies and
release/indemnity clauses, plus minimizing the actual risk through
correcting or warning of dangerous conditions.
My $0.02.
Sincerely,
Eric
Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1320 University St
Seattle WA 98101-2837
phone 206-625-0092
fax 206-625-9040
From: wsbarp-owner at lists.wsbarppt.com
[mailto:wsbarp-owner at lists.wsbarppt.com] On Behalf Of Jodi Bourg
Sent: Wednesday, May 28, 2014 5:54 PM
To: Listserv, WSBARP
Subject: Re: [WSBARP] Excise Tax on Transfer & Lease Question
Thanks for all the input on the excise tax question. Now, about that
attractive nuisance liability question.... any takers?
_____
From: "Josh Grant" <jgrant at accima.com>
To: "Listserv, WSBARP" <wsbarp at lists.wsbarppt.com>
Sent: Wednesday, May 28, 2014 5:22:24 PM
Subject: Re: [WSBARP] Excise Tax on Transfer & Lease Question
If parents decide to put real property into their LLC, in the same
percentage as their real property ownership.. and later they decide to
gift a minority percentage of the membership to their adult kids for
estate planning purposes, is that OK ... no 1% tax...
and do they have to wait a certain period of time to transfer that
membership in the LLC?
thanks
Joshua F. Grant
Attorney at Law
P.O. Box 619
Wilbur, WA 99185
t 509 647 5578
f 509 647 2734
----- Original Message -----
From: Eric Nelsen <mailto:Eric at sayrelawoffices.com>
To: wsbarp at lists.wsbarppt.com
Sent: Wednesday, May 28, 2014 4:51 PM
Subject: RE: [WSBARP] Excise Tax on Transfer & Lease Question
Yes, exempt from excise tax so long as the grantors own the LLC in the
same proportion as they own the property--mere change in identity or form,
WAC 458-61A-211(2)
<http://apps.leg.wa.gov/wac/default.aspx?cite=458-61A-211> .
Sincerely,
Eric
Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1320 University St
Seattle WA 98101-2837
phone 206-625-0092
fax 206-625-9040
From: wsbarp-owner at lists.wsbarppt.com
[mailto:wsbarp-owner at lists.wsbarppt.com] On Behalf Of Jodi Bourg
Sent: Wednesday, May 28, 2014 4:43 PM
To: Listserv, WSBARP
Subject: [WSBARP] Excise Tax on Transfer & Lease Question
Mates,
I've got HCs one of whom owns the home in King County in which they live.
They are planning to rent it out. So far, so good. They want to quit
claim this property to their LLC. I know that quit claiming from an LLC
to its members exempts it from paying excise tax, but does it work the
other way? I imagine the WACs have the answer somewhere, but I was hoping
that someone would know off the top of their head.
The other part of this question has to do with the fact that HCs' home is
waterfront property and they are concerned about liability against, for
lack of a better term, an accident having to do with someone falling in
the water or worse. Has anyone dealt with this concern in a lease and if
so, would you be willing to share it with me.
Many thanks.
Jodi Bourg
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All opinions and comments in this message represent the views of the
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Bar Association nor its officers or agents.
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Bar Association nor its officers or agents.
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As with all lists - let the reader beware! No warranties or
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author and do not necessarily have the endorsement of the Washington State
Bar Association nor its officers or agents.
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