Attached files
file | filename |
---|---|
EX-5.1 - EX-5.1 - EQUITY RESIDENTIAL | c65484exv5w1.htm |
8-K - FORM 8-K - EQUITY RESIDENTIAL | c65484e8vk.htm |
EX-99.1 - EX-99.1 - EQUITY RESIDENTIAL | c65484exv99w1.htm |
EXHIBIT 8.1
DLA Piper LLP (US) | ||
203 North LaSalle Street, Suite 1900 | ||
Chicago, Illinois 60601-1293 | ||
T 312.368.4000 | ||
F 312.236.7516 | ||
W www.dlapiper.com |
July 18, 2011
Board of Trustees
Equity Residential
Two North Riverside Plaza, Suite 400
Chicago, Illinois 60606
Equity Residential
Two North Riverside Plaza, Suite 400
Chicago, Illinois 60606
Re: Tax Opinion REIT Status |
Ladies and Gentlemen:
We are acting as special tax counsel to Equity Residential, a Maryland real estate investment
trust (EQR), in connection with the offering of 2,750,000 common shares of beneficial interest,
$0.01 par value per share (Shares) as described in (i) the Companys Registration Statement on
Form S-3 (Registration No. 333-169956) filed with the Securities and Exchange Commission (the
SEC) and which became effective on October 15, 2010 (the Registration Statement) under the
Securities Act of 1933, as amended (Securities Act), (ii) the Base Prospectus filed with the
Registration Statement on the same date (the Base Prospectus), and (iii) the Prospectus
Supplement dated July 18, 2011 and filed with the SEC (the Prospectus Supplement). This opinion
letter is furnished to you at your request to enable EQR to fulfill the requirements of Item
601(b)(8) of Regulation S-K, 17 C.F.R. § 229.601(b)(8), in connection with the Registration
Statement and the Prospectus Supplement.
For purposes of this opinion letter, we have examined copies of the following documents: (i)
an executed copy of the Registration Statement, the Base Prospectus, and the Prospectus Supplement;
(ii) the Articles of Restatement of EQR (Declaration of Trust), as certified by an officer of the
Company on the date hereof as then being complete, accurate, and in effect; (iii) the Seventh
Amended and Restated Bylaws of EQR (Bylaws), as certified by an officer of the Company on the
date hereof as then being complete, accurate, and in effect; (iv) the Sixth Amended and Restated
Agreement of Limited Partnership of Operating Partnership (ERP LP Agreement); (v) resolutions of
the Board of Trustees of EQR or a duly authorized committee thereof that authorizes and otherwise
relates to the issuance of the Shares (Resolutions); and (vi) such other materials and matters as
we have deemed necessary for the issuance of this opinion.
In addition, we have relied upon the factual representations and covenants of EQR and, to the
extent set forth in the Officers Certificate (as hereinafter defined), of Multifamily Portfolio
Partners, Inc., a Delaware corporation, EQR-District Holding, LLC, a Delaware limited liability
company, and BEL Residential Properties Trust, a Maryland real estate investment trust (each such
entity, along with BEL Multifamily Property Trust, a Maryland real estate investment trust, BEL
Communities Property Trust, a Maryland real estate investment trust, and BEL Apartment Properties
Trust, a Maryland real estate investment trust, hereinafter referred to as a Subsidiary REIT),
contained in EQRs certificate to us, dated as of the date hereof (the Officers Certificate),
executed by a duly appointed officer of EQR setting forth certain representations and covenants
relating to the organization and operation of EQR, the Operating Partnership, the Subsidiary REITs
and their respective subsidiaries.
Although we have made such inquiries and performed such investigations as we have deemed
necessary for purposes of our opinion, we have not independently verified all of the facts,
statements, representations and covenants set forth in the Officers Certificate or in any other
document we reviewed. We consequently have assumed that the information presented in such
documents or otherwise furnished to us accurately and completely describes all material facts
relevant to our opinion. We are not aware of any facts that are inconsistent with any of the
representations made to us in the Officers Certificate. Any representation or statement in any
document upon which we rely that is made to the best knowledge of or otherwise similarly qualified
is assumed to be true, correct and complete as if made without such qualification as to knowledge
or belief. Any alteration or inaccuracy of such facts, statements, representations or covenants
may adversely affect our opinions.
For purposes of our opinion, we have assumed that all of the representations and statements of
a factual nature set forth in the documents we reviewed are true, correct and complete, and all of
the obligations imposed by any such documents on the parties thereto have been and will be
performed or satisfied in accordance with their terms. We have also assumed the legal capacity of
all natural persons, the genuineness of all signatures, the proper execution of all documents, the
authenticity of all documents submitted to us as originals, the conformity to originals of
documents submitted to us as copies, and the authenticity of the originals from which any copies
were made.
The opinions set forth in this letter are based on relevant provisions of the Internal Revenue
Code of 1986, as amended (the Code), the regulations promulgated thereunder by the United States
Department of the Treasury (Regulations) (including proposed and temporary Regulations), and
interpretations of the foregoing as expressed in court decisions, the legislative history, and
existing administrative rulings and practices of the Internal Revenue Service (including its
practices and policies in issuing private letter rulings, which are not binding on the Internal
Revenue Service (IRS) except with respect to a taxpayer that receives such a ruling), all as of
the date hereof.
In rendering these opinions, we have assumed that the transactions contemplated by the
Reviewed Documents will be consummated in accordance with the terms and provisions of such
documents, and that such documents accurately reflect the material facts of such transactions. In
addition, the opinions are based on the correctness of the following specific assumptions:
(i) | EQR, the Operating Partnership, the Subsidiary REITs and their respective subsidiaries will each be operated in the manner described in the Declaration of Trust, the ERP LP Agreement, and the other organizational documents of each such entity, as the case may be, and all terms and provisions of such agreements and documents will be complied with by all parties thereto; | ||
(ii) | EQR is a duly formed real estate investment trust under the laws of the State of Maryland; | ||
(iii) | The Operating Partnership is a duly organized and validly existing limited partnership under the laws of the State of Illinois; and | ||
(iv) | There will be no change in the applicable laws of the State of Maryland, the State of Illinois, or in the Code, the Regulations, and the interpretations of the Code and such Regulations by the courts and the IRS, after the date of this letter. |
With respect to the last assumption, it should be noted that statutes, regulations, judicial
decisions, and administrative interpretations are subject to change at any time and, in some
circumstances, with retroactive effect. A material change that is made after the date hereof in
any of the foregoing bases for our opinions could affect our conclusions. Furthermore, if the
facts vary from those relied upon (including if any representations, warranties, covenants or
assumptions upon which we have relied are inaccurate, incomplete, breached or ineffective), our
opinion contained herein could be inapplicable.
The qualification and taxation of EQR as a real estate investment trust (REIT) under the
Code will depend upon (i) EQRs meeting, in its actual operations, the applicable asset
composition, source of income, shareholder diversification, distribution and other requirements of
the Code and Regulations necessary for an entity to qualify as a REIT and (ii) the satisfaction by
each of the Subsidiary REITs of the requirements for qualification and taxation as a REIT. We will
not review the operations of EQR or any of the Subsidiary REITs, and no assurance can be given that
the actual operations of EQR or any Subsidiary REIT will meet these requirements or the
representations made to us with respect thereto.
Based upon and subject to the foregoing, it is our opinion that:
(i) | EQR was organized and has operated in conformity with the requirements for qualification as a REIT under the Code for its taxable years ended December 31, 1992 through December 31, 2010, and EQRs organization and proposed method of operation will enable it to continue to satisfy the requirements for qualification and taxation as a REIT under the Code for its taxable years ending after the date of this opinion. |
(ii) | The discussion in each of (1) EQRs Annual Report on Form 10-K for the year ending December 31, 2010, under the heading Federal Income Tax Considerations, which is incorporated by reference into the Prospectus Supplement and (2) the Prospectus Supplement included as part of the Registration Statement under the heading Additional Federal Income Tax Considerations, to the extent that it constitutes matters of federal income tax law or legal conclusions relating thereto, is accurate in all material respects. |
The foregoing opinion is limited to the matters specifically discussed herein, which are the
only matters to which you have requested our opinion. Other than as expressly stated above, we
express no opinion on any issue relating to EQR or any investment therein, the Operating
Partnership, any Subsidiary REIT, or under any other law.
For a discussion relating the law to the facts and the legal analysis underlying the opinions
set forth in this letter, we incorporate by reference the discussion of federal income tax issues,
which we assisted in preparing, in the section of EQRs Annual Report on Form 10-K for the year
ended December 31, 2010, under the heading Federal Income Tax Considerations. We assume no
obligation to advise you of any changes in the foregoing subsequent to the date of this opinion
letter, and we are not undertaking to update the opinion letter from time to time. You should be
aware that an opinion of counsel represents only counsels best legal judgment, and has no binding
effect or official status of any kind, and that no assurance can be given that contrary positions
may not be taken by the Internal Revenue Service or that a court considering the issues would not
hold otherwise.
This opinion is rendered only to you and may not be quoted in whole or in part or otherwise
referred to, nor be filed with, or furnished to, any other person or entity in connection with the
Registration Statements. We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement under the Securities Act of 1933, as amended, pursuant to Item 601(b)(8) of
Regulation S-K, 17 C.F.R. § 229.601(b)(8), and the reference to DLA Piper LLP (US) contained under
the heading Legal Matters in the Prospectus Supplement included as part of the Registration
Statement. In giving this consent, we do not admit that we are included in the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules
and regulations of the Securities and Exchange Commission thereunder.
Very truly yours, |
||||
/s/ DLA PIPER LLP (US) | ||||
DLA PIPER LLP (US) |