OPINION OF HOGAN & HARTSON RE: TAX MATTERS
Published on
EXHIBIT 8
October 31, 1997
Equity Residential Properties Trust
Two North Riverside Plaza
Suite 400
Chicago, Illinois 60606
Ladies and Gentlemen:
We have acted as special tax counsel to Equity Residential Properties
Trust, a Maryland real estate investment trust (the "Company"), in connection
with its registration statement on Form S-3 (the "Registration Statement") filed
with the Securities and Exchange Commission on October 31, 1997, relating to the
proposed public offering of up to 7,000,000 common shares of beneficial
interest, par value $.01 per share, of the Company (the "Common Shares"),
issuable in connection with the Company's Distribution Reinvestment and Share
Purchase Plan (the "Plan"). This opinion letter is furnished to you at your
request to enable the Company to fulfill the requirements of Item 601(b)(5) of
Regulation S-K, 17 C.F.R. (S) 229.601(b)(5), in connection with the Registration
Statement.
The opinion set forth in this letter is based on relevant provisions
of the Internal Revenue Code of 1986, as amended (the "Code"), Treasury
Regulations thereunder (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
except with respect to a taxpayer that receives such a ruling), all as of the
date hereof. These provisions and interpretations are subject to change, which
may or may not be retroactive in effect, that might result in modifications of
our opinion. Our opinion does not foreclose the possibility of a contrary
determination by the Internal Revenue Service or a court of competent
jurisdiction, or of a contrary position by the Internal Revenue Service or the
Treasury Department in regulations or rulings issued in the future.
Equity Residential Properties Trust
October 31, 1997
Page 2
In rendering our opinion, we have examined such statutes, regulations,
records, certificates and other documents as we have considered necessary or
appropriate as a basis for such opinion, including the following:
(1) the Registration Statement;
(2) the Second Amended and Restated Declaration of Trust of the
Company (the "Declaration of Trust") as certified by the State Department of
Assessments and Taxation of the State of Maryland on September 19, 1997 and as
certified by the Secretary of the Company on the date hereof as being complete,
accurate and in effect;
(3) the Fourth Amended and Restated ERP Operating Limited Partnership
Agreement of Limited Partnership, dated September 30, 1995;
(4) the Equity Residential Properties Management Limited Partnership
Agreement of Limited Partnership, dated July 23, 1993, and the Equity
Residential Properties Management Limited Partnership II Agreement of Limited
Partnership, dated November 3, 1994 (collectively, these two partnerships will
be referred to as the "Management Partnerships");
(5) the articles of incorporation, by-laws and stock ownership
information of the Management Corps. (which term, for purposes of this opinion
letter, includes Wellsford Holly Management, Inc.), and Wellsford Real
Properties, Inc. ("WRP Newco");
(6) the partnership agreements or limited liability company
agreements of all other partnerships or limited liability companies in which the
Operating Partnership has an interest (collectively, the "Subsidiary
Partnerships") other than Subsidiary Partnerships formed after January 1, 1997
(for a list of the Subsidiary Partnerships, see Exhibit A); and
(7) the articles of incorporation, by-laws and stock ownership
information of the various qualified REIT subsidiaries wholly-owned by the
Company (the "QRS Corporations") (for a list of the QRS Corporations, see
Exhibit B).
The opinion set forth in this letter also is premised on certain written
representations of the Company and the Operating Partnership made to us, which
Equity Residential Properties Trust
October 31, 1997
Page 3
relate, inter alia, to the Company and to EQR and Wellsford as predecessors by
merger to the Company.
In our review, we have assumed, with your consent, that all of the
representations and statements set forth in the documents we reviewed are true
and correct, 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. Moreover, we have assumed that (i) the Company, (ii) the Operating
Partnership, and (iii) the Management Partnerships, the Management Corps., the
Subsidiary Partnerships and the QRS Corporations (collectively, the "Subsidiary
Entities") each have been and will continue to be operated in the manner
described in the relevant partnership agreement, limited liability company
agreement, articles of incorporation or other organizational documents and in
the Registration Statement. We also have assumed 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.
For the purposes of our opinion, we have not made an independent
investigation of the facts set forth in the documents 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. No facts have come to our attention, however, that
would cause us to question the accuracy and completeness of such facts or
documents in a material way.
We assume for the purposes of this opinion that the Company is a
validly organized and duly incorporated real estate investment trust under the
laws of the State of Maryland, that the Management Corps., WRP Newco and the QRS
Corporations are validly organized and duly incorporated corporations under the
laws of the states in which they are incorporated, and that the Operating
Partnership, the Management Partnerships, and the Financing Partnerships are
duly organized and validly existing partnerships or limited liability companies
under the laws of the states in which they are organized.
Equity Residential Properties Trust
October 31, 1997
Page 4
Based upon, and subject to, the foregoing and the next paragraph
below, we are of the opinion that:
1. The Company was organized and has operated in conformity with the
requirements for qualification and taxation as a REIT under the
Code for its taxable years ended December 31, 1992, December 31,
1993, December 31, 1994, December 31, 1995, and December 31,
1996, and the Company's current organization and method of
operation should enable it to continue to meet the requirements
for qualification and taxation as a REIT; and
2. The discussion in the Registration Statement under the heading
"Federal Income Tax Considerations," to the extent that it
describes matters of federal income tax law, is correct in all
material respects.
For purposes of the second opinion stated above, the term "Registration
Statement" does not include the documents incorporated by reference in the
Registration Statement.
The Company's qualification and taxation as a REIT depend upon the
Company's ability to meet on a continuing basis, through actual annual operating
and other results, the various requirements under the Code and described in the
Registration Statement with regard to, among other things, the sources of its
gross income, the composition of its assets, the level of its distributions to
stockholders, and the diversity of its share ownership. Hogan & Hartson L.L.P.
will not review the Company's compliance with these requirements on a continuing
basis. No assurance can be given that the actual results of the operations of
the Company, the Operating Partnership, and the Subsidiary Entities, the sources
of their income, the nature of their assets, the level of the Company's
distributions to shareholders and the diversity of its share ownership for any
given taxable year will satisfy the requirements under the Code for
qualification and taxation as a REIT.
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. This opinion letter has been
prepared solely for your use in connection with the filing of the Registration
Statement on the date of this opinion letter and should not be quoted in whole
or in part or otherwise be
Equity Residential Properties Trust
October 31, 1997
Page 5
referred to, nor filed with or furnished to any governmental agency or other
person or entity, without the prior written consent of this firm.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of the name of the firm therein.
Very truly yours,
Hogan & Hartson L.L.P.
Exhibit A
SUBSIDIARY PARTNERSHIPS
1. EQR-Emerald Place Financing Limited Partnership;
2. EQR-Essex Place Financing Limited Partnership;
3. EQR-Tanasbourne Terrace Financing Limited Partnership;
4. EQR-Reserve Square Limited Partnership;
5. Country Club Associates Limited Partnership;
6. Second Country Club Associates Limited Partnership;
7. Second Georgian Woods Limited Partnership;
8. Greenwich Woods Associates Limited Partnership;
9. Artery Northampton Limited Partnership;
10. Third Towne Centre Limited Partnership;
11. Fourth Towne Centre Limited Partnership;
12. EQR-BS Financing Limited Partnership;
13. E-Chaparral Associates Limited Partnership;
14. EQR-Lincoln Green I and II GP Limited Partnership;
15. E-G One Associates;
16. E-G Two Associates;
17. EQR-Lodge (OK) GP Limited Partnership;
18. E-Lodge Associates;
19. EQR-Stonebrook GP Limited Partnership;
20. E-Stonebrook Associates;
21. EQR-EOI Financing Limited Partnership;
22. EQR-Continental Villas Financing Limited Partnership;
23. EQR-Doral Financing Limited Partnership;
24. EQR-Governor's Place Financing Limited Partnership;
25. EQR-Plantation Financing Limited Partnership;
26. EQR-Valley Park South Financing Limited Partnership;
27. EQR-Yorktowne Financing Limited Partnership;
Exhibit A
28. EQR-SWN Line Financing Limited Partnership;
29. EQR-Arbors Financing Limited Partnership;
30. EQR-Breton Hammocks Financing Limited Partnership;
31. EQR-Met Financing Limited Partnership;
32. EQR-Met CA Financing Limited Partnership;
33. EQR-Wellington Hill Financing Limited Partnership;
34. Equity-Chaparral Venture Limited Partnership;
35. Equity-Green I Venture;
36. Equity-Green II Venture;
37. Equity-Lodge Venture Limited Partnership;
38. Equity-Stonebrook Venture Limited Partnership;
39. Georgian Woods Annex Associates;
40. EQR-Camellero Financing Limited Partnership;
41. EQR-Arizona, L.L.C.;
42. EQR-Washington, L.L.C.;
43. EQR-Wellington, L.L.C.;
44. EQR-Oregon, L.L.C.;
45. EQR-Waterfall, L.L.C.;
46. Multifamily Portfolio LP Limited Partnership;
47. EQR-California, L.C.C.;
48. EQR-Plantation, L.L.C.;
49. EQR-ArtBHolder, L.L.C.;
50. EQR-ArtCapLoan, L.L.C.;
51. EQR-Keystone Financing G.P.;
52. Country Ridge General Partnership;
53. Rosehill Pointe General Partnership;
54. EQR-Canter Chase General Partnership;
55. Hunter's Glen General Partnership;
56. Sunny Oak Village General Partnership;
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Exhibit A
57. EQR-Pine Meadows Garden General Partnership;
58. EQR-Bond Partnership;
59. EQR-Park Place I General Partnership;
60. EQR-Park Place II General Partnership;
61. Songbird General Partnership;
62. Cedar Crest General Partnership;
63. EQR-Creekside Oaks General Partnership;
64. EQR-Village Oaks General Partnership;
65. EQR-Lakeville Resort General Partnership;
66. EQR-Trails at Dominion General Partnership;
67. EQR-Virginia, L.L.C.;
68. EQR-Dartmouth Woods General Partnership;
69. Wadlington Investments General Partnership;
70. EQR Warwick, L.L.C.;
71. EQR Ironwood, L.L.C.;
72. EQR-Spinnaker Cove, L.L.C.;
73. EQR-Wyndridge II, L.L.C.;
74. EQR-Wyndridge III, L.L.C.;
75. EQR-Highline Oaks, L.L.C.;
76. EQR Marks A, L.L.C.;
77. EQR-Missouri, L.L.C.;
78. EQR-Ridgemont/Mountain Brook, L.L.C.;
79. EQR Marks B, L.L.C.;
80. EQR-Coach Lantern, L.L.C.;
81. EQR-Foxcroft, L.L.C.;
82. EQR-Yarmouth Woods, L.L.C.;
83. EQR-Chardonnay Park, L.L.C.;
84. EQR-Preston Bend General Partnership;
85. EQR-Villa Serenas General Partnership;
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Exhibit A
86. The Gates of Redmond, L.L.C.;
87. EQR-North Hill, L.L.C.;
88. EQR-Watson General Partnership;
89. CAPREIT Woodland Meadows Limited Partnership;
90. CAPREIT Burwick Farms Limited Partnership;
91. CAPREIT Mariner's Wharf Limited Partnership;
92. CAPREIT Silver Springs Limited Partnership;
93. CAPREIT Northlake Limited Partnership;
94. CAPREIT Tivoli Lakes Club Limited Partnership;
95. CAPREIT Eastland on the Lake Limited Partnership;
96. CAPREIT Concorde Bridge Limited Partnership;
97. CAPREIT Garden Lake Limited Partnership;
98. CAPREIT Highland Grove Limited Partnership;
99. CAPREIT Clarion Limited Partnership;
100. CAPREIT Atrium Limited Partnership;
101. CAPREIT Chimneys Limited Partnership;
102. CAPREIT Creekwood Limited Partnership;
103. CAPREIT Hidden Oaks Limited Partnership;
104. CAPREIT Botany Arms Limited Partnership;
105. CAPREIT Hampton Arms Limited Partnership;
106. CAPREIT Gleneagle Limited Partnership;
107. CAPREIT Greyeagle Limited Partnership;
108. CAPREIT Tarmarind at Stonebridge Limited Partnership; and
109. CAPREIT Sycamore Ridge Limited Partnership.
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Exhibit B
QRS CORPORATIONS
1. ERP-QRS BS, Inc.;
2. ERP-QRS Lincoln Green, Inc.;
3. ERP-QRS Lodge (OK), Inc.;
4. ERP-QRS Stonebrook, Inc.;
5. ERP-QRS EOI, Inc.;
6. ERP-QRS Continental Villas, Inc.;
7. ERP-QRS Doral, Inc.;
8. ERP-QRS Governor's Place, Inc.;
9. ERP-QRS Plantation, Inc.;
10. ERP-QRS Valley Park South, Inc.;
11. ERP-QRS Yorktowne, Inc.;
12. ERP-QRS SWN Line, Inc.;
13. ERP-QRS Arbors, Inc.;
14. ERP-QRS Breton Hammocks, Inc.;
15. ERP-QRS Emerald Place, Inc.;
16. ERP-QRS Essex Place, Inc.;
17. ERP-QRS Met, Inc.;
18. ERP-QRS Met CA, Inc.;
19. ERP-QRS Wellington Hill, Inc.;
20. ERP-QRS Tanasbourne Terrace, Inc.;
21. ERP-QRS Reserve Square, Inc.;
22. ERP-QRS Camellero, Inc.;
23. QRS-LLC, Inc.;
24. QRS-Waterfall, Inc.;
25. QRS-ArtBHolder, Inc.;
26. QRS-ArtCapLoan, Inc.
Exhibit B
27. ERP-QRS Rosehill Pointe, Inc.;
28. ERP-QRS Country Ridge, Inc.;
29. ERP-QRS Lakeville Resort, Inc.;
30. ERP-QRS Park Place I, Inc.;
31. ERP-QRS Park Place II, Inc.;
32. ERP-QRS Sunny Oak Village, Inc.;
33. ERP-QRS Pine Meadows Garden, Inc.;
34. ERP-QRS Hunter's Glen, Inc.;
35. ERP-QRS Canter Chase, Inc.;
36. QRS-Bond, Inc.;
37. ERP-QRS Songbird, Inc.;
38. ERP-QRS Cedar Crest, Inc.;
39. ERP-QRS Creekside Oaks, Inc.;
40. ERP-QRS Village Oaks, Inc.;
41. ERP-QRS Lakeville Resort, Inc.;
42. ERP-QRS Trails at Dominion, Inc.;
43. ERP-QRS Dartmouth Woods, Inc.;
44. Wadlington, Inc.;
45. QRS-Marks A, Inc.;
46. QRS-Marks B, Inc.;
47. QRS-Warwick, Inc.;
48. QRS-Ironwood, Inc.;
49. EQR-QRS Ridgemont/Mountain Brook, Inc.;
50. EQR-QRS Spinnaker Cove, Inc.;
51. EQR-QRS Wyndridge II, Inc.;
52. ERP-QRS Villa Serenas, Inc.;
53. EQR-QRS Wyndridge III, Inc.;
54. EQR-QRS Highline Oaks, Inc.;
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Exhibit B
55. QRS-Coach Lantern, Inc.;
56. QRS-Foxcroft, Inc.;
57. QRS-Yarmouth Woods, Inc.;
58. QRS-Chardonnay Park, Inc.;
59. ERP-QRS Preston Bend, Inc.;
60. QRS-Missouri, Inc.;
61. QRS-Gates of Redmond, Inc.;
62. QRS-North Hill, Inc;
63. ERP-QRS Watson, Inc.; and
64. ERP-QRS CPRT, Inc.
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