EXHIBIT 8
Published on
[Letterhead of Hogan & Hartson L.L.P.]
June 16, 1999
Board of Trustees
Equity Residential Properties Trust
Two North Riverside Plaza
Suite 400
Chicago, Illinois 60606
Ladies and Gentlemen:
We have acted as counsel to Equity Residential Properties Trust, Inc., a
Maryland real estate investment trust (the "Company"), in connection with the
registration statement on Form S-3 (the "Registration Statement") and the
prospectus included therein, which includes certain documents incorporated by
reference including the Company's Annual Report on Form 10-K for the year
ended December 31, 1998 (the "Prospectus"), filed by the Company with the
Securities and Exchange Commission relating to the possible issuance by the
Company of up to 3,089,547 shares (the "Common Shares") of common stock, par
value $.01 per share, if and to the extent that, the Company elects to issue the
Common Shares to the holders of 3,089,547 units of Limited Partnership interest
("Units") in ERP Operating Limited Partnership. (the "Operating Partnership")
upon the tender of such Units for redemption. In connection with the
Registration Statement, we have been asked to provide you with our opinions on
certain federal income tax matters. Capitalized terms used in this letter and
not otherwise defined herein have the meanings set forth in the Registration
Statement.
The opinions set forth in this letter are based on relevant provisions of
the Internal Revenue Code of 1986, as amended (the "Code"), Treasury Regulations
thereunder (including proposed and temporary Treasury 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 opinions. Our opinions do 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.
In rendering our opinions, we have examined such statutes, regulations,
records, certificates and other documents as we have considered necessary or
appropriate as a basis for such opinions, including the following:
(1) the Registration Statement;
(2) the Prospectus;
Board of Trustees
Equity Residential Properties Trust
June 16, 1999
Page 2
(3) the Second Amended and Restated Declaration of Trust of the Company as
certified by the State Department of Assessments and Taxation of the State of
Maryland on June 16, 1999 and as certified by the Secretary of the Company on
the date hereof as being complete, accurate and in effect;
(4) the Fifth Amended and Restated ERP Operating Limited Partnership
Agreement of Limited Partnership, dated August 1, 1998;
(5) the articles of incorporation, by-laws and stock ownership
information of Equity Residential Properties Management Corp., Equity
Residential Properties Management Corp. II, Evans Withycombe Management, Inc.
and ML Services, Inc. (the "Management Corps."), and Wellsford Real
Properties, Inc. ("WRP Newco"), a company in which the Operating Partnership
owns non-voting preferred stock and a minority of the common stock;
(6) the partnership agreements or limited liability company agreements of
Equity Residential Properties Management Limited Partnership and Equity
Residential Properties Management Limited Partnership II (collectively, the
"Management Partnerships"), and all other partnerships or limited liability
companies in which the Operating Partnership has an interest, including Evans
Withycombe Residential, L.P. (collectively, the partnerships in which either the
Operating Partnership or Evans Withycombe Residential, L.P. has an interest,
other than the Management Partnerships, may be referred to as the "Subsidiary
Partnerships") other than Subsidiary Partnerships formed after January 1, 1997
and those acquired in connection with the acquisition of Merry Land & Investment
Company, Inc. ("Merry Land");
(7) the articles of incorporation, by-laws and stock ownership information
of the various "qualified REIT subsidiaries" wholly-owned by the Company
(collectively, the "QRS Corporations");
(8) the Joint Proxy Statement/Prospectus/Information Statement furnished to
the shareholders of the Company on September 14, 1998 in connection with the
acquisition of Merry Land by the Company (the "Proxy Statement"); and
(9) other necessary documents.
The opinions set forth in this letter also are premised on certain written
representations of the Company and the Operating Partnership made to us, which
relate, INTER
Board of Trustees
Equity Residential Properties Trust
June 16, 1999
Page 3
ALIA, to the Company and to EQR and Wellsford as predecessors by
merger to the Company (the "Representation Letter").
In our review, we have assumed, with your consent, that:
(i) All of the representations and statements set forth in the documents
we reviewed (the "Reviewed Documents") are true and correct, any such
representation or statement made as a belief or made "to the knowledge of" or
similarly qualified is correct and accurate without such qualification, 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.
(ii) The Company, the Operating Partnership, the Management Partnerships,
the Management Corps., the QRS Corporations and the Subsidiary Partnerships 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 Prospectus;
(iii) There are no agreements or understandings between the Company or the
Operating Partnership, on the one hand, and the owners (or related parties) of
the voting stock of the Management Corps. and WRP Newco, on the other, that are
inconsistent with the Operating Partnership being considered to be the record or
beneficial owner of less than 10% of the outstanding voting stock of any of the
Management Corps. or WRP Newco.
(iv) All signatures to the Reviewed Documents are genuine, all documents
were properly executed, all documents submitted to us as originals are
authentic, all documents submitted to us as copies conform to the originals, and
all original documents from which any copies were made are authentic.
(v) The Company is a validly organized and duly incorporated real estate
investment trust under the laws of the State of Maryland. 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. The Operating Partnership, the Management Partnerships, and the
Subsidiary Partnerships are duly organized and validly existing partnerships or
limited liability companies under the laws of the states in which they are
organized.
For the purpose of our opinions, we have not made an independent
investigation of the facts set forth in the Reviewed Documents. We consequently
have assumed that the
Board of Trustees
Equity Residential Properties Trust
June 16, 1999
Page 4
information presented in such documents (including the Representation Letter
and the Proxy Statement) or otherwise furnished to us accurately and
completely describes all material facts relevant to our opinions. 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. Any
variation or difference in the facts from those set forth in the Reviewed
Documents may affect the conclusions stated herein. In addition, if any one
of the statements, representations, warranties or assumptions upon which we
have relied to issue this opinion letter is incorrect, our opinions might be
adversely affected and may not be relied upon.
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, December 31, 1996,
December 31, 1997, and December 31, 1998, 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
Board of Trustees
Equity Residential Properties Trust
June 16, 1999
Page 5
2. The discussion under the heading "Federal Income Tax
Considerations" in the Company's Annual Report on Form 10-K for
the year ended December 31, 1998, which is incorporated by
reference in the Prospectus, and the discussion in the Prospectus
under the heading "Additional Federal Income Tax Considerations,"
to the extent that they describe provisions of federal income tax
law or legal conclusions, are correct in all material respects.
This opinion letter is limited to the two opinions stated above. Our
opinions do not, and are not intended to, address the tax consequences to any
holder of Units with respect to the acquisition, ownership, redemption or
disposition of its Units. For purposes of the second opinion stated above, the
term "Prospectus" does not include the documents incorporated by reference in
the Prospectus other than the Company's Annual Report on Form 10-K for the year
ended December 31, 1998.
The Company's qualification and taxation as a REIT depends 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
Prospectus 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, the Management Partnerships, the Management
Corps., the QRS Corporations and the Subsidiary Partnerships, 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.
An opinion of counsel merely represents counsel's best judgment with
respect to the probable outcome on the merits and is not binding on the Internal
Revenue Service or the courts. There can be no assurance that positions
contrary to our opinions will not be taken by the Internal Revenue Service, or
that a court considering the issue would not hold contrary to our opinions.
Furthermore, no assurance can be given that future legislative, judicial or
administrative changes, on either a prospective or retroactive basis, would not
adversely affect the accuracy of the opinions expressed herein. Nevertheless,
we undertake no responsibility to advise you of any such changes.
Board of Trustees
Equity Residential Properties Trust
June 16, 1999
Page 6
This opinion letter has been prepared for your benefit in connection
with the filing of the Registration Statement. This opinion letter may not
be used or relied upon by any other person or for any other purpose and may
not be disclosed, quoted, filed with any governmental agency or otherwise
referred to without our prior written consent of this firm. We hereby
consent to the filing of this opinion letter as Exhibit 8.1 to the
Registration Statement and to the reference to Hogan & Hartson L.L.P. under
the caption "Federal Income Tax Considerations" in the Registration
Statement. In giving this consent, we do not thereby admit that we are an
"expert" within the meaning of the Securities Act of 1933, as amended.
Very truly yours,
Hogan & Hartson L.L.P.