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Brett Thomas Sullivan

Brett Sullivan’s Answers

33 total

  • Quit claim deed question- signed, notarized but not recorded before owner dies

    Quit Claim Deed was signed 3 months ago and notarized but not yet recorded. Owner died this week. Can it still be recorded and will it be an issue with the will when it is filed? Will not recorded yet and Probate not started.

    Brett’s Answer

    Your first question is whether the quit claim deed can be recorded. I am assuming that the owner of the property is the one who is the "grantor" in the quit claim deed (that is, the one who is granting the deed and who is conveying an interest in the property, or clearing title to any interest in the property). Generally, the answer is yes, the deed can still be recorded; however, every deed recorded in the state of Washington must be accompanied by a Real Estate Excise Tax Affidavit. The Affidavit must be signed by the grantor or an agent on behalf of the grantor. That agent will be the personal representative under the terms of the will (if a valid will exists). If no valid will exists, then the agent will be an executor who qualifies to administer the deceased owner's estate under Washington's intestate succession laws. So, if no Real Estate Excise Tax Affidavit was prepared and signed by the grantor (owner), then the deed cannot be recorded at this time. One other point-in the event that the quit claim deed does not qualify for exemption under the applicable Washington real estate excise tax regulations, then interest and penalties may accrue if the deed was not delivered to the grantee (the recipient) at the time of execution of the deed (see below).

    The second issue is whether the deed was actually delivered to the grantee. If it was not delivered prior to death (which will require an analysis of the facts surrounding the execution of the will), then technically the deed will not be valid to convey an interest in the real property. Whether there will be an issue when the will is admitted to probate depends upon the facts and circumstances surrounding the owner's estate and the provisions of the will.

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  • Do I need to file my LLC as a foreign agent if I have rental properties in other states?

    I live in WA and am looking ti buy property in NJ. So I will collect rental income from NJ. I think I do but I just wanted to confirm. Thank you for your help

    Brett’s Answer

    Have you made a determination that you need to own the rental property in a limited liability entity such as an LLC? I typically recommend to my clients that they do so, but an analysis of the costs and benefits should be performed first before going to the expense of forming the LLC.

    If you want to own the rental property in an LLC, then you need to make a separate consideration as to whether the LLC should be formed in Washington or New Jersey. If it is formed in Washington, then you will most certainly need to register the entity in New Jersey as a foreign LLC (I'm not aware of a "foreign agent" registration; I believe you probably mean a foreign entity or foreign LLC registration). If formed in New Jersey, then no need to register the entity as a foreign entity. You should consult a New Jersey tax advisor to determine the tax consequences associated with owning rental income property in New Jersey.

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  • Can you put the word "The" in front of your business name?

    I'm starting a business and I want to use a business name that starts with the word "the". These are not any company names I am considering, but for example: "The National Burger Company", "The National grocery store", etc. I just want to make s...

    Brett’s Answer

    I agree with the prior answers, and would like to add one more comment: If you are forming an entity (for example, a corporation or a limited liability company) to operate the business, and the name of the entity is not identical to the name of the business, then you will need to register a trade name before you can operate the business in Washington. I recommend that you research trade name registrations at the following website: http://bls.dor.wa.gov/addtradenames.aspx.

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  • What's the best legal approach for a general information technology consulting relationship with a customer ?

    I do IT consulting for companies, some of them have been customers for years. The work is varied, and could not realistically be fully captured into a contract scope, outside of general language. Many of these relationships are based on a hand...

    Brett’s Answer

    I agree with Ms. Jordan's answer and also would like to note the saying that an "ounce of prevention is worth a pound of cure" (and perhaps it is worth a ton of cure in the contract setting). I have numerous clients who have business relationships based on verbal agreements. While those agreements may very well be perfectly enforceable and may work out fine, those clients have certainly come to appreciate a written agreement (drafted with their interests in mind) which sets forth the rights and obligations as between the parties.

    For example, in Washington state, the general rule in a contract breach situation is that each party bears their own legal fees and costs in the event of a dispute. However, the burden of paying attorneys' fees and costs can often be a significant challenge in the event that one of your clients chooses not to pay you over (for instance), if the amount in dispute is less than or equal to attorneys' fees and costs. In those cases, having the ability to enforce the right to have the other party (who has breached the agreement) pay your attorney fees and costs can be a significant point of negotiating leverage to resolve the dispute. This is called a "prevailing party" attorney's fee provision.

    If your agreement is verbal, it may not have covered the payment of attorneys' fees and costs to the prevailing party, and if it does, then it may be very difficult or impossible to enforce.

    The prevailing party attorney's fees and costs provision is but one of a number of defensive contract provisions that I recommend to my business and consulting clients. Defining in writing the scope of work is also a critical contract provision to include, which will help to prevent future disputes.

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  • My contractor is charging me sales tax as we go. Should I verify that he is paying the state?

    We are about 50% through on a $1M remodel. I want to be sure at the end, the sales tax I'm advancing is not just going into the contractor's pocket with the state coming after me for the tax. I could put the money in escrow or tell him I'll pay s...

    Brett’s Answer

    Washington Department of Revenue regulations require that prime contractors collect retail sales tax from the landowner on the gross contract price (without deduction of costs incurred), except in the cases of speculative construction or other unique circumstances. Billing invoices must separately state the sales tax. If the contract requires retainage, sales tax must be computed before deducting such amounts. Your desired options at the end of your question are not legal options under Washington state law.

    Does your construction contract address the issue of retainage or holdbacks? Your contract may also provide some other mechanisms for ensuring compliance. Additionally, you can find out some general information about the contractor's tax registration and status at http://www.dor.wa.gov/content/doingbusiness/registermybusiness/brd/.

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  • My remodeling llc is failing, how do back taxes play in

    I have to either close or go to bare bones with my little company, I am out of capital, the company owes a lot in taxes, cannot make payroll or buy materials, there is money due on jobs in progress but we cannot get the payments until we reach mil...

    Brett’s Answer

    With regard to your question concerning unpaid taxes, the answer will depend upon what type of taxes are owed. For some taxes, you may face personal liability as a responsible individual by reason of your role as a manager or member of your company.

    You should consult an attorney experienced in working with insolvent companies for further guidance, as the answers will be fact specific.

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  • What stipulations can be included in a partnership agreement?

    I'm opening a bar/restaurant with two other partners. My concerns are drug and alcohol abuse and fraternization with the staff leading to trouble. Also one of the partners is responsible for the build of the bar and I worry he will not be able to ...

    Brett’s Answer

    Although you ask about specific precautions concerning two certain areas, your question raise a number of issues that will need to be addressed by an attorney experienced with business operations, entity formation and management and employee issues. I see, at the outset, the following issues:

    1. Ownership structure and management issues (for example, if you are owning this business through an entity, such as a limited liability company, I recommend that an operating agreement be executed by the owners to address the partnership/ownership issues)
    2. Agreements between the entity/partnership and the partner/owner who is performing services related to the construction/build of the bar
    3. Employee policies and manuals to address your concerns regarding alcohol/drug use and abuse and other employee issues

    Your desired industry carries with it a somewhat high degree of risk compared to other industries (both from a financial and legal angle). You will need to carefully analyze the risk points and take appropriate steps to reduce the exposure. For example, it will be very important to obtain properly issued insurance coverage for the business. Additionally, the business may need to borrow money, or sign contracts, which may involve personal guaranties (another risk area for the owners).

    I advise you consult with an attorney experienced in these areas to decide which specific precautions can be incorporated into your formation and operational documents, in order to get the business properly started.

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  • In an LLC, we want to add 2 new members.

    I have a DIY Certificate of Formation for our LLC. Now we want to add 2 new members. Do we have to change our Certificate of Formation?

    Brett’s Answer

    I agree with Mr. Michels concerning the amendment of your Certificate of Formation. Depending upon the information in your existing Certificate, you may need to amend (such as changing the management provision). However, your existing Certificate may contain other information that may need to be changed. Finally, I recommend to my clients that an Operating Agreement is very important to have in place between multiple members of a limited liability company. You should consult an attorney experienced with limited liability companies to assess changes that may be necessary as well as other issues that may need to be addressed with new members being admitted to the LLC.

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  • I am trying to set up a DIY LLC with some friends.

    Some friends and I want to set up a LLC and I can't find some critical information. My questions are 1. Do the terms "member" and "owner" mean the same thing? 2. Does each "member" (or "owner") have to make a cash contribution to be a part of th...

    Brett’s Answer

    In response to your questions:

    1. Yes, for purposes of a limited liability company (LLC) in Washington state, the terms "member" and "owner" mean the same thing. In a corporation, owners are referred to as "shareholders" or "stockholders"; in an LLC, they are referred to as "members".

    2. No, members do not need to necessarily contribute cash to an LLC in exchange for membership interest. Members can contribute other property not consisting of cash. Any contribution of property should be adequately documented and described in the Operating Agreement which I always recommend be prepared and signed by the members (see below), and all members should agree on the value of contributed property other than cash.

    3. When you are speaking of tax returns, if you mean the limited liability company's tax returns, then the answer is a bit more complicated. For a single-member LLC, the LLC is treated by the IRS as a "disregarded entity" and the income and expenses are reflected on the member's own tax return. For a multi-member LLC, then the LLC's tax returns (a Form 1065 if it is taxed as a partnership or a Form 1120 if taxed as a corporation or 1120-S if taxed as a Subchapter S corporation) will reflect the members' initial starting capital accounts. The LLC should retain an experienced tax advisor for further advice regarding capital accounts, the choice of how the LLC should be taxed as well as the preparation of necessary tax returns.

    I always advise my clients if joining or forming a multi-member LLC to have a comprehensive LLC Operating Agreement in place at the outset. This document, which is an agreement between the members, governs the relationships between the members, the governance of the LLC, the entrance/exist of new and existing members, and also provides for a number of other important provisions.

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  • Trying to figure out what type of lawyer we need. (See details)

    We are a new small business that will focus on four areas Construction, Real Estate (buy/sell), Property Management, and Landscaping. We are not sure what type of lawyer we need to help us with general business structure and needs, customer contr...

    Brett’s Answer

    You will want to consult with an attorney experienced in business formation, contract drafting and the giving of general business advice and counsel. Additionally, I recommend you consult with a lawyer who is experienced in small business representation. Thank you.

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