[WSBARP] Excise Tax on Transfer & Lease Question

Eric Nelsen Eric at sayrelawoffices.com
Thu May 29 09:45:03 PDT 2014 

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:  <mailto:Eric at sayrelawoffices.com> Eric Nelsen

To:  <mailto:wsbarp at lists.wsbarppt.com> 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,
<http://apps.leg.wa.gov/wac/default.aspx?cite=458-61A-211> WAC
458-61A-211(2).

 

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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Bar Association nor its officers or agents. 

 

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Bar Association nor its officers or agents. 

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Information provided on this list should not be considered legal advice.
As with all lists - let the reader beware! No warranties or
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All opinions and comments in this message represent the views of the
author and do not necessarily have the endorsement of the Washington State
Bar Association nor its officers or agents. 

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