Section 201. Formation of Limited Partnership;
Certificate of Limited Partnership

(a) In order for a limited partnership to be formed, a certificate of limited partnership must be delivered to the [Secretary of State] for filing. The certificate must state:

(1) the name of the limited partnership, which must comply with Section 108;

(2) the street and mailing address of the initial designated office and the name and street and mailing address of the initial agent for service of process;

(3) the name and the street and mailing address of each general partner;

(4) whether the limited partnership is a limited liability limited partnership; and

(5) any additional information required by [Article] 11.

(b) A certificate of limited partnership may also contain any other matters but may not vary or otherwise affect the provisions specified in Section 110(b) in a manner inconsistent with that section.

(c) If there has been substantial compliance with subsection (a), subject to Section 206(c) a limited partnership is formed when the [Secretary of State] files the certificate of limited partnership.

(d) Subject to subsection (b), if any provision of a partnership agreement is inconsistent with the filed certificate of limited partnership or with a filed statement of dissociation, termination, or change or filed articles of conversion or merger:

(1) the partnership agreement prevails as to partners and transferees; and

(2) the filed certificate of limited partnership, statement of dissociation, termination, or change or articles of conversion or merger prevail as to persons, other than partners and transferees, that reasonably rely on the filed record to their detriment.

Comment

Source – RULPA Section 201.

A limited partnership is a creature of statute, and this section governs how a limited partnership comes into existence. A limited partnership is formed only if (i) a certificate of limited partnership is prepared and delivered to the specified public official for filing, (ii) the public official files the certificate, and (iii) the certificate, delivery and filing are in “substantial compliance” with the requirements of subsection (a). Section 206(c) governs when a limited partnership comes into existence.

Despite its foundational importance, a certificate of limited partnership is far less powerful than a corporation’s articles of incorporation. Among partners and transferees, for example, the partnership agreement is paramount. See Section 201(d).

Subsection (a)(1) –Section 108 contains name requirements. To be acceptable for filing, a certificate of limited partnership must state a name for the limited partnership which complies with Section 108.

Subsection (a)(3) – This provision should be read in conjunction with Section 103(c) and Section 401. See the Comment to those sections.

Subsection (a)(4) – This Act permits a limited partnership to be a limited liability limited partnership (“LLLP”), and this provision requires the certificate of limited partnership to state whether the limited partnership is an LLLP. The requirement is intended to force the organizers of a limited partnership to decide whether the limited partnership is to be an LLLP.

Subject to Sections 406(b)(2) and 1110, a limited partnership may amend its certificate of limited partnership to add or delete a statement that the limited partnership is a limited liability limited partnership. An amendment deleting such a statement must be accompanied by an amendment stating that the limited partnership is not a limited liability limited partnership. Section 201(a)(4) does not permit a certificate of limited partnership to be silent on this point, except for pre-existing partnerships that become subject to this Act under Section 1206. See Section 1206(c)(2).

Subsection (d) – Source: ULLCA Section 203(c).

A limited partnership is a creature of contract as well as a creature of statute. It will be possible, albeit improper, for the partnership agreement to be inconsistent with the certificate of limited partnership or other specified public filings relating to the limited partnership. For those circumstances, this subsection provides the rule for determining which source of information prevails.

For partners and transferees, the partnership agreement is paramount. For third parties seeking to invoke the public record, actual knowledge of that record is necessary and notice under Section 103(c) or (d) is irrelevant. A third party wishing to enforce the public record over the partnership agreement must show reasonable reliance on the public record, and reliance presupposes knowledge.

This subsection does not expressly cover a situation in which (i) one of the specified filed records contains information in addition to, but not inconsistent with, the partnership agreement, and (ii) a person, other than a partner or transferee, detrimentally relies on the additional information. However, the policy reflected in this subsection seems equally applicable to that situation.

Responsibility for maintaining a limited partnership’s public record rests with the general partner or partners. Section 202(c). A general partner’s failure to meet that responsibility can expose the general partner to liability to third parties under Section 208(a)(2) and might constitute a breach of the general partner’s duties under Section 408. In addition, an aggrieved person may seek a remedy under Section 205 (Signing and Filing Pursuant to Judicial Order).