GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2021
SESSION LAW 2022-64
HOUSE BILL 1018
AN ACT to (i) make VARIOUS amendments affecting real property, (Ii) strengthen the personal liability protection for limited liability partnerships, (iii) align the authority to transfer venue for judicial review of contested cases with other cases, (Iv) make a conforming change to account for special fiduciaries in guardianship proceedings, and (v) clarify and improve the landmark designation procedure, as recommended by the general statutes commission.
The General Assembly of North Carolina enacts:
PART I. REAL PROPERTY AMENDMENTS
SECTION 1. G.S. 47‑18.1 reads as rewritten:
"§ 47‑18.1.
Registration of certificate of corporate entity name change, merger,
consolidation, or conversion.
(a) If title to real
property in this State is vested by operation of law in another entity upon the
name change, merger, consolidation, or conversion of an entity, such the
vesting is effective against lien creditors or purchasers for a valuable
consideration from the entity formerly owning the property, only from the time
of registration of a certificate thereof as provided in this section, in
the county where the land lies, or if the land is located in more than one
county, then in each county where any portion of the land lies to be effective
as to the land in that county.
(b) The Secretary of State
shall adopt uniform certificates of name change, merger, consolidation,
or conversion, to be furnished for registration, and shall adopt such fees
as are necessary for the expense of such certification. these
certifications. If the entity involved is not a domestic entity, a similar
certificate by any competent authority in the jurisdiction of incorporation or
organization may be registered in accordance with this section.
(c) A certificate of the
Secretary of State prepared in accordance with this section shall be registered
by the register of deeds in the same manner as deeds, and for the same fees,
but no formalities as to acknowledgment, probate, or approval by any other
officer shall be are required. The name of the entity formerly
owning the property shall appear in the "Grantor" index, and the name
of the entity owning the property by virtue of the merger, consolidation, or
conversion shall appear in the "Grantee" index."
SECTION 2.(a) G.S. 47‑119 reads as rewritten:
"§ 47‑119. Form of memorandum Memorandum for
option to purchase or convey, right of first refusal, or right of first
offer for real estate.
An option to purchase or convey,
a right of first refusal, or a right of first offer for real estate may be
registered by registering a memorandum thereof which shall set forth:that
sets forth all of the following:
(1) The names of the
parties thereto;and signatures, executed and notarized, of all of the
following:
a. Each record title holder selling the option or right.
b. Each person purchasing the option or right.
(2) A description of the property
which real estate that is subject to the option;option or
right.
(3) The expiration date of
the option;option or right.
(4) Reference The
title of the agreement and the parties to it, as contained in the original
written contract, or other reference sufficient to identify the complete
agreement between the parties.
Such a memorandum may be in
substantially the following form:
NORTH CAROLINA
__________________ COUNTY
In consideration of , the
receipt__________________________________________________
(Set
out consideration)
of which is hereby acknowledged, __________________________________________________
(Name
and address of person selling option)
does hereby give and grant to _____________________________________________________
(Name and
address of person buying option)
the right and option to purchase
the following property:
(Here describe property)
This option shall expire on the
________ day of ________________, ______.
The provisions set forth in a
written option agreement between the parties dated the ________ day of
_______________, _______, are hereby incorporated in this memorandum.
Witness our hand(s) and seal(s)
this _______ day of ______________, ______
_____________________________________ (Seal)
____________________________________ (Seal)"
SECTION 2.(b) G.S. 47‑119.1 reads as rewritten:
"§ 47‑119.1. Form of memorandum Memorandum for
contract to purchase real estate.
A contract to convey real estate
may be registered by registering a memorandum thereof which shall set that
sets forth all of the following:
(1) The names of the
parties thereto.and signatures, executed and notarized, of all of the
following:
a. Each record title holder contracting to convey an interest in the real estate.
b. Each person contracting to purchase the real estate.
(2) A description of the property
which real estate that is subject to the contract.
(3) The expiration date of the contract.
(4) Reference The
title of the agreement and the parties to it, as contained in the original
written contract, or other reference sufficient to identify the complete
agreement between the parties.
The memorandum may be in substantially
the following form:
NORTH CAROLINA
__________________ COUNTY
_____________________________
(Name and address of person
contracting to sell real estate)
and
_______________________________________________
(Name and address of person
contracting to purchase real estate)
have entered into a contract to
sell and purchase the following property:
____________________________________________________________________
(Here describe property)
This
contract provides for a closing date of the _____day of _______, ________.
The
provisions set forth in a written contract to convey real estate between the
parties dated the _____ day of ________________, __________, are hereby
incorporated in this memorandum.
Witness
our hand(s) and seal(s) this _______ day of ______________, ______
(Seal)
(Seal)
[Acknowledgement
notarial certificate by all parties, as provided by applicable law in order to
register in the office of the register of deeds of the county in which the
property is located.]
The titles of the contract and
the parties thereto, as contained in the original written contract, may be
substituted in lieu of the above references."
SECTION 2.(c) G.S. 47‑120 reads as rewritten:
"§ 47‑120. Memorandum as notice.
Such A memorandum of a
lease, an option to purchase real estate, or convey, a right of first
refusal, a right of first offer, or a contract to convey real estate as
proposed by G.S. 47‑118, 47‑119, or 47‑119.1 when executed,
acknowledged, executed by each record title holder and each other party
to the instrument, acknowledged before a notary public, and delivered and
registered as required by law, shall be is as good and sufficient
notice, and have has the same force and effect as if the written
lease, option to purchase real estate, or contract to convey instrument had
been registered in its entirety. However, it shall be is conclusively
presumed that the conditions of any contract to purchase that is the subject
of a recorded memorandum under this section have instrument reflected in
a memorandum have either been complied with or have expired and are no
longer enforceable as against creditors or purchasers for valuable
consideration who that have recorded their interests after the
memorandum from and after the expiration of 60 days from whichever of the
following events occurs first:60 days after the earlier of the
following:
(1) The closing expiration
date stated in the memorandum, or any recorded extension or renewal of the
memorandum, signed by the parties and acknowledged before an officer
authorized to take acknowledgements.a notary public.
(2) The date when the memorandum
required the conditions of the contract to convey, to have been
performed, including payment of the last installment of earnest money or
balance of purchase price (other price, other than a purchase
money note or deed of trust), trust, and delivery of the deed
from the seller to buyer were required by the terms of the recorded
memorandum to have been performed, buyer, or the date of any
recorded extension or renewal thereof signed by the parties and
acknowledged before an officer authorized to take acknowledgements.a
notary public."
SECTION 3.(a) Article 1 of Chapter 41 of the General Statutes is amended by adding a new section to read:
"§ 41‑6.5. Common‑law rule against perpetuities abolished.
(a) The rule of the common law known as the rule against perpetuities is abolished.
(b) Article 2 of this Chapter sets out the Uniform Statutory Rule Against Perpetuities.
(c) This section applies to a property interest or a power of appointment created on or after October 1, 1995. This section clarifies the intent of the General Assembly to abolish the common‑law rule against perpetuities when it enacted Chapter 190 of the 1995 Session Laws, which enacted the Uniform Statutory Rule Against Perpetuities."
SECTION 3.(b) G.S. 41‑22 is repealed.
SECTION 3.(c) This section is effective when it becomes law and does not affect any rights adjudicated in a final court decision entered on or before that date.
PART II. LIMITED LIABILITY PARTNERSHIPS
SECTION 4.(a) G.S. 59‑45 reads as rewritten:
"§ 59‑45. Nature of partner's liability in ordinary partnerships and in registered limited liability partnerships.
(a) Except as provided by subsections (a1) and (b) of this section, all partners are jointly and severally liable for the acts and obligations of the partnership.
(a1) Except as provided in
subsection (b) of this section, a partner in a registered limited liability
partnership is not individually liable liable, directly or
indirectly, including by indemnification, contribution, assessment, or
otherwise, for debts and obligations of the partnership incurred while it
is a registered limited liability partnership solely by reason of being a
partner and does not become liable by participating, in whatever capacity, in
the management or control of the business of the partnership.
(b) Nothing in this Chapter shall
be interpreted to abolish, modify, restrict, limit, or alter alters the
law in this State applicable to the professional relationship and liabilities
between the individual furnishing the professional services and the person
receiving the professional services, the standards of professional conduct
applicable to the rendering of the services, or any responsibilities,
obligations, or sanctions imposed under applicable licensing statutes. A
partner in a registered limited liability partnership is not individually
liable, directly or indirectly, including by indemnification, contribution,
assessment, or otherwise, for the debts, obligations, and liabilities of, or
chargeable to, the registered limited liability partnership that arise from
errors, omissions, negligence, malpractice, incompetence, or malfeasance
committed by another partner or by an employee, agent, or other representative
of the partnership; provided, however, nothing in this Chapter shall
affect affects the liability of a partner of a professional
registered limited liability partnership for his or her own errors, omissions,
negligence, malpractice, incompetence, or malfeasance committed in the
rendering of professional services.
…
(e) The liability of
partners of a registered limited liability partnership formed and existing
under this Chapter shall at all times be is determined solely
and exclusively by this Chapter and the laws of this State.
(f) If a conflict arises
between the laws of this State and the laws of any other jurisdiction with
regard to the liability of a partner of a registered limited liability partnership
formed and existing under this Chapter for the debts, obligations, and
liabilities of the registered limited liability partnership, this Chapter and
the laws of this State shall govern in determining the liability."
SECTION 4.(b) G.S. 59‑70 reads as rewritten:
"§ 59‑70. Rules for distribution.
In settling accounts between the partners after dissolution, the following rules shall be observed, subject to any agreement to the contrary:
(1) The assets of the partnership are all of the following:
a. The partnership property,property.
b. The contributions of the partners necessary for the payment of all the liabilities specified in subdivision (2) of this section.
(2) The liabilities of the
partnership shall rank in order of payment, as follows:
a. Those owing to creditors
other than partners,partners.
b. Those owing to partners
other than for capital and profits,profits.
c. Those owing to partners
in respect of capital,capital.
d. Those owing to partners in respect of profits.
(3) The assets shall be applied in the order of their declaration in subdivision (1) of this section to the satisfaction of the liabilities.
(4) The partners shall
contribute, as provided by G.S. 59‑48, subdivision (1) G.S. 59‑48(1),
the amount necessary to satisfy the liabilities; any liabilities
incurred when the partnership was not a registered limited liability
partnership; but if any, but not all, of the partners are insolvent, or,
not being subject to process, refuse to contribute, the other partners shall
contribute their share of the these liabilities, and, in the
relative proportions in which they share the profits, the additional amount
necessary to pay the these liabilities.
(5) An assignee for the
benefit of creditors or any person appointed by the court shall have has
the right to enforce the contributions specified in subdivision (4) of this
section.
(6) Any A partner
or his legal representative shall have has the right to enforce
the contributions specified in subdivision (4) of this section, section
to the extent of the amount which he that the partner has
paid in excess of his the partner's share of the liability.
(7) The individual property
of a deceased partner shall be liable for is subject to the
contributions specified in subdivision (4) of this section.
(8) When partnership property
and the individual properties of the partners are in possession of a court for
distribution, partnership creditors shall have priority on partnership
property and separate creditors have priority on individual property,
saving the rights of lien or secured creditors as heretofore.creditors.
(9) Where a partner has
become bankrupt or his the partner's estate is insolvent insolvent,
the claims against the separate property shall rank in the following
order:
a. Those owing to separate creditors,creditors.
b. Those owing to
partnership creditors,creditors.
c. Those owing to partners by way of contribution."
PART III. VENUE FOR JUDICIAL REVIEW OF CONTESTED CASES
SECTION 5.(a) G.S. 150B‑45 reads as rewritten:
"§ 150B‑45. Procedure for seeking review; waiver.
(a) Procedure. – Deadline.
– To obtain judicial review of a final decision under this Article, the
person seeking review must file a petition in superior court within 30
days after the person is served with a written copy of the decision. The
petition must be filed as follows:A person that fails to file a petition
within the required time waives the right to judicial review under this
Article. For good cause shown, however, the superior court may accept an
untimely petition.
(1) Contested tax cases. – A petition for review of
a final decision in a contested tax case arising under G.S. 105‑241.15
must be filed in the Superior Court of Wake County.
(2) Other final decisions. – A petition for review
of any other final decision under this Article must be filed in the superior
court of the county where the person aggrieved by the administrative decision
resides, or in the case of a person residing outside the State, in the county
where the contested case which resulted in the final decision was filed.
(b) Waiver. – A person
who fails to file a petition within the required time waives the right to
judicial review under this Article. For good cause shown, however, the superior
court may accept an untimely petition.Venue. – The petition must be
filed as follows:
(1) Contested tax cases. – A petition for review of a final decision in a contested tax case arising under G.S. 105‑241.15 must be filed in the Superior Court of Wake County.
(2) Other final decisions. – A petition for review of any other final decision under this Article must be filed in the superior court of the county where the person aggrieved by the administrative decision resides, or in the case of a person residing outside the State, in the county where the contested case that resulted in the final decision was filed.
(3) Change of venue. – If a petition is filed in an improper county, the superior court of that county may order a change of venue consistent with G.S. 1‑83 but shall not dismiss the petition on the ground of improper venue.
(c) Judicial Review for State
Board of Elections and Ethics Enforcement. – Elections. – For a
stay entered pursuant to G.S. 150B‑33(b)(6), the State Board of
Elections and Ethics Enforcement may obtain judicial review of the
temporary restraining order or preliminary injunction in the superior court of
the county designated in subsection (a) of this section."
SECTION 5.(b) This section is effective when it becomes law and applies to petitions filed on or after that date.
PART IV. GUARDIANSHIP
SECTION 6. G.S. 35A‑1107 reads as rewritten:
"§ 35A‑1107. Right to counsel or guardian ad litem.
(a) The respondent is
entitled to be represented by counsel of his the respondent's own
choice or by an appointed guardian ad litem. Upon filing of the petition, an
attorney shall be appointed as guardian ad litem to represent the respondent
unless the respondent retains his own counsel, in which event the
guardian ad litem may be discharged. Appointment and discharge of an appointed
guardian ad litem shall be in accordance with rules adopted by the Office of
Indigent Defense Services.
(b) An attorney appointed as
a guardian ad litem under this section shall represent the respondent until the
any of the following occurs:
(1) The petition is dismissed or until a dismissed.
(2) A guardian is appointed under Subchapter II of this Chapter.
(3) Other relief is granted under Article 2 of this Subchapter.
(c) After being appointed, the guardian ad litem shall personally visit the respondent as soon as possible and shall make every reasonable effort to determine the respondent's wishes regarding the incompetency proceeding and any proposed guardianship. The guardian ad litem shall present to the clerk the respondent's express wishes at all relevant stages of the proceedings. The guardian ad litem also may make recommendations to the clerk concerning the respondent's best interests if those interests differ from the respondent's express wishes. In appropriate cases, the guardian ad litem shall consider the possibility of a limited guardianship and shall make recommendations to the clerk concerning the rights, powers, and privileges that the respondent should retain under a limited guardianship."
PART V. LANDMARK DESIGNATION
SECTION 7. G.S. 160D‑946 reads as rewritten:
"§ 160D‑946. Required landmark designation procedures.
As a guide for the identification
and evaluation of landmarks, the preservation commission shall undertake, at
the earliest possible time and consistent with the resources available to it,
an inventory of properties of historical, architectural, prehistorical, and cultural
significance within its jurisdiction. Such The inventories and
any additions or revisions thereof to them shall be submitted as
expeditiously as possible to the Office of Archives and History. No regulation or
amendment to a regulation designating a historic building, structure, site,
area, or object as a landmark nor any amendment thereto may shall be
adopted, nor may any and no property shall be accepted or
acquired by a preservation commission or the governing board, until all of the following
procedural steps have been taken:
(1) The preservation
commission shall (i) prepare and adopt (i) prepares and adopts rules
of procedure and (ii) prepare and adopt prepares and adopts principles
and guidelines, standards, not inconsistent with this Part, for
altering, restoring, moving, or demolishing properties designated as landmarks.
(2) The preservation
commission shall make or cause to be made forwards to the Office of
Archives and History of the North Carolina Department of Natural and Cultural
Resources an investigation and report on the historic, architectural,
prehistorical, educational, or cultural significance of each building,
structure, site, area, or object proposed for designation or acquisition. Such
investigation or report shall be forwarded to the Office of Archives and
History, North Carolina Department of Cultural Resources.
(3) The Department of Natural
and Cultural Resources, acting through the State Historic Preservation
Officer, shall, upon request of the department or at the initiative of the
preservation commission, be given an opportunity to review and comment upon the
substance and effect of the designation of any landmark pursuant to this Part.
Any comments shall be provided in writing. If the Department does not submit its
comments or recommendation in connection with any designation within 30 days
following receipt by the Department of the investigation and report of the
preservation commission, the commission and any governing board shall be
relieved of any responsibility to consider such comments.Resources is
allowed 30 days from receipt of the preservation commission's complete
investigation and report to provide written comments to the commission
concerning the proposed designation or acquisition. Failure of the Department
to submit its comments within the time allowed relieves the commission and the
governing board of any responsibility to consider the comments.
(4) The preservation
commission and the governing board shall hold a joint legislative
hearing or separate legislative hearings on the proposed regulation. Notice of
the hearing shall be made as provided by G.S. 160D‑601.
(5) Following Following the hearings, the
governing board may adopt the regulation as proposed, adopt the regulation with
any amendments it deems necessary, or reject the proposed regulation.
(6) Upon adoption of the
regulation, the owners and occupants of each designated landmark shall be are
given written notice of such the designation within a
reasonable time. One copy of the regulation and all amendments thereto to
it shall be filed by the preservation commission in the office of the
register of deeds of the county in which the landmark or landmarks are is
located. In the case of any landmark property lying within the planning and
development regulation jurisdiction of a city, a second copy of the regulation
and all amendments thereto to it shall be kept on file in the
office of the city or town clerk and be made available for public inspection at
any reasonable time. A third copy of the regulation and any amendments shall be
given to the local government building inspector. The fact that a building,
structure, site, area, or object has been designated a landmark shall be
clearly indicated on all tax maps maintained by the local government for such
period as the designation remains in effect.
(7) Upon the adoption of the
landmark regulation or any amendment thereto, it shall be the duty of to
it, the preservation commission to give gives notice thereof
of the regulation or amendment to the tax supervisor of the county
in which the property is located. The designation and any recorded restrictions
upon the property limiting its use for preservation purposes shall be
considered by the tax supervisor in appraising it for tax purposes."
PART VI. EFFECTIVE DATE
SECTION 8. Except as otherwise provided, this act is effective when it becomes law.
In the General Assembly read three times and ratified this the 1st day of July, 2022.
s/ Phil Berger
President Pro Tempore of the Senate
s/ Tim Moore
Speaker of the House of Representatives
s/ Roy Cooper
Governor
Approved 2:09 p.m. this 8th day of July, 2022