Entity and Trade Name Registration: 2004 Update
| Jurisdiction | Colorado,United States |
| Citation | Vol. 34 No. 1 Pg. 11 |
| Pages | 11 |
| Publication year | 2005 |
2005, January, Pg. 11. Entity and Trade Name Registration: 2004 Update
Vol. 34, No. 1, Pg. 11
The Colorado Lawyer
January 2005
Vol. 34, No. 1 [Page 11]
January 2005
Vol. 34, No. 1 [Page 11]
Articles
Entity and Trade Name Registration: 2004 Update
by Beat U. Steiner
by Beat U. Steiner
Beat U. Steiner, Denver, is a partner in Steiner, Darling
& Hutchinson LLP - (303) 837-2380; bsteiner@sdhlaw.com
He is a member of the Title Standards Committee, Secretary of
State Advisory Committee, and CBA Business Law Section
Legislative Drafting Committee
This article describes the most recent changes to the law
related to entity and trade names and is accompanied by a
detailed chart showing the current filing and recording
requirements. Also included is a summary of the major changes
to the trade name filing system that will take place in May
2006
This article updates previous articles by this author1 to
take into account many significant changes in the law related
to entity and trade names, especially those made by House
Bills ("H.B") 03-1377 and 04-1398, both of which
became effective on July 1, 2004. The "name game"
continues to be interesting or, at least, ever changing.
This article discusses the types of filings that affect
entity names and trade names and which are required or
permitted to be made with the Secretary of State or the
Colorado Department of Revenue ("CDOR") or recorded
in the records of the county clerks and recorders. It also
discusses the penalties for failure to file and record. The
new trade name filing system that will be in effect as of May
30, 2006 is discussed as well. Until that new system takes
effect, practitioners must be careful to understand the
recent legislative changes discussed throughout this article.
TYPES OF FILINGS
There is no uniform approach to the filings and recordings of
entity and trade names, although the most recent legislation
has created a uniform system for the filing of documents by
the Secretary of State.2 Each filing and recording has its
own origin and history. As a result, each has its own
requirements, and the applicable statutes should be consulted
prior to filing or recording. This section discusses a few of
the most common filings and recordings, which are also listed
in the accompanying Chart of Colorado Entity and Trade Name
Registration Requirements and Customs (hereafter,
"Chart") (see Appendix).
The Chart
The Chart summarizes the filing and recording requirements
and customs presently in effect. The Secretary of State
filings listed in the Chart are those that relate to the
formation3 of entities or their obtaining limited liability
status4 (so-called "constituent filed documents"),
as well as filings needed to qualify to transact business in
Colorado5 (and, if needed, obtain an assumed entity name),6
register the name of a foreign entity,7 file trade names,8 or
reserve a name.9 The recordings are those related to
establishing entity existence and authority in real estate
records and to give prima facie evidence to aid in rendering
title to real property marketable.
The CDOR registration is for the registration of trade
names10 by entities other than specified entities that are on
file in the Secretary of State's records. The Chart does
not include numerous other filings or recordings mandated or
permitted by statute. The Chart covers the most common
entities, but does not deal with cooperatives, which have
essentially the same requirements as corporations;11 limited
partnership associations ("LPAs"), of which there
are only a few;12 special purpose corporations, which also
generally have the same requirements as corporations;13 and
other not-so-common entities provided for by statute in
Colorado.14
Constituent Filed
Documents
Documents
Each entity statute (called "organic statutes")15
for an entity that has limited liability provides for the
filing of a constituent filed document. These documents
include articles of incorporation, articles of organization,
articles of association, and certificates of limited
partnership. Registration statements by which general
partnerships ("GPs") become limited liability
partnerships ("LLPs") and limited partnerships
("LPs") become limited liability limited
partnerships ("LLLPs") are also constituent filed
documents. The Chart identifies the constituent filed
document for each form of entity, if it has one.
Statement of Trade Name
A Statement of Trade Name pursuant to CRS § 7-71-101 is
required to be filed with the Secretary of State by any
corporation, LLP, LP, LLLP, limited liability company
("LLC"), and LPA, domestic or foreign, that
transacts business under a trade name. A Statement of Trade
Name that is filed in the Secretary of State's Office
also may be recorded in the office of the clerk and recorder
of any county. Upon recording, it becomes prima facie
evidence of the existence of the entity16 and of the facts
recited in the certificate, insofar as the same affect title
to real property.17 The primary purpose of a Statement of
Trade Name is to allow consumers to determine with whom they
are doing business.
Trade Name Registration
A Trade Name Registration pursuant to CRS § 24-35-301 must be
filed with the CDOR, and annually renewed,18 by every
"person and general partnership or other business
organization doing business in this state under any name
other than the personal name of its owner or owners."19
An exception is made for entities that are required to file a
Statement of Trade Name with the Secretary of State.20 A
Trade Name Registration can be effected either by the
CDOR's Form DR 0592, if only registering a trade name, or
as part of a Colorado Business Registration, using Form CR
100.21
A Trade Name Registration is different from a Statement of
Trade Name in several respects. First and most important, a
Trade Name Registration grants no exclusivity to the
registered name. Any name may be registered. In contrast, a
trade name filed in a Statement of Trade Name, at the present
time, will preclude the filing in the Secretary of
State's records of another entity name or trade name that
is not distinguishable from it on the records.22 Second, a
Trade Name Registration must be renewed annually. The
Statement of Trade Name is a one-time filing. Finally, the
recording with a county clerk and recorder of a Trade Name
Registration has no effect. However, as noted above, the
statute provides for the recording of a Statement of Trade
Name.
Trade Name Affidavit
A Trade Name Affidavit recorded in the real estate records
pursuant to CRS § 24-35-301(1.5) is the historical instrument
for giving notice that a person is transacting business under
a trade name. That purpose is now accomplished by the
Statement of Trade Name filed in the records of the Secretary
of State and the Trade Name Registration filed with the CDOR.
However, the Trade Name Affidavit continues to be the
customary instrument for giving notice in the real estate
records that title to real property may be held by a person
in a trade name. A recorded Trade Name Affidavit constitutes
"prima facie evidence of the facts recited therein
insofar as the same affect title to real property."23
Statement of Authority
A Statement of Authority pursuant to CRS § 38-30-17224 may be
recorded by any entity capable of holding title to real
property. When recorded, the Statement of Authority gives
prima facie evidence of the existence of the entity and of
the facts recited in the statement, insofar as such facts
affect title to real property.
In addition to basic information concerning the entity, a
Statement of Authority must include the name or position of
the person authorized to execute instruments conveying,
encumbering, or otherwise affecting title to real property on
behalf of the entity.25 A Statement of Authority also may
contain any limitation as may exist upon the authority of the
person named in the statement or holding the position
described in the statement to bind the entity and any other
matters concerning the manner in which the entity deals with
any interest in real property.26
The absence of any limitations in a Statement of Authority is
prima facie evidence that no such limitations exist.27
Generally, a Statement of Authority is not suitable for
recording notice of a trade name, but it is a valuable aid in
establishing marketable title to real property held by an
entity.28
Statement of
Partnership Authority
Partnership Authority
The Colorado Uniform Partnership Act ("CUPA")29
introduced a Statement of Partnership Authority that,
pursuant to CRS §§ 7-64-303 et seq., may be filed by
partnerships governed by CUPA in the records of the Secretary
of State and recorded in the real property records. It is an
anomalous filing in that GPs do not otherwise have documents
filed in the records of the Secretary of State. The Secretary
of State creates an entity record for a GP if it delivers a
Statement of Partnership Authority for filing. Under H.B.
04-1398, a Statement of Partnership Authority can be filed by
any partnership (general or limited, with or without limited
liability), whether or not it is governed by CUPA.30
A Statement of Partnership Authority filed with the Secretary
of State is prima facie evidence of the existence of the
partnership and of the facts recited therein.31 It also
supplements the authority of a partner to enter into
transactions on behalf of the partnership.32 Moreover, a
grant of authority to transfer real property held in the name
of a partnership contained in a copy of a Statement of
Partnership Authority that has been (1) filed with the
Secretary of State and (2) recorded in the office of the
clerk and recorder of the county in which the real...
To continue reading
Request your trial