Attached files
file | filename |
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8-K - FORM 8-K - COLONIAL PROPERTIES TRUST | g25499e8vk.htm |
EX-5.2 - EX-5.2 - COLONIAL PROPERTIES TRUST | g25499exv5w2.htm |
EX-5.1 - EX-5.1 - COLONIAL PROPERTIES TRUST | g25499exv5w1.htm |
EX-1.2 - EX-1.2 - COLONIAL PROPERTIES TRUST | g25499exv1w2.htm |
EX-1.1 - EX-1.1 - COLONIAL PROPERTIES TRUST | g25499exv1w1.htm |
EX-99.1 - EX-99.1 - COLONIAL PROPERTIES TRUST | g25499exv99w1.htm |
Exhibit 8.1
December 10, 2010
Board of Trustees
Colonial Properties Trust
2101 Sixth Avenue North, Suite 750
Birmingham, Alabama 35202
Colonial Properties Trust
2101 Sixth Avenue North, Suite 750
Birmingham, Alabama 35202
Ladies and Gentlemen:
We are acting as tax counsel to Colonial Properties Trust, an Alabama real estate investment trust
(the Company) in connection with the issuance and sale of up to $100,000,000 of common shares of
beneficial interest, par value $0.01 per share (the Shares), of the Company, all of which Shares
are to be offered and sold by the Company from time to time in accordance with the terms of the
separate Equity Distribution Agreements, each dated December 10, 2010 (the Equity Distribution
Agreements), among the Company, Colonial Realty Limited Partnership, a Delaware limited
partnership (the Operating Partnership), and Merrill Lynch, Pierce, Fenner & Smith Incorporated,
and among the Company, the Operating Partnership and Wells Fargo Securities LLC, respectively, and
as described in the prospectus supplement dated December 10, 2010 (the Prospectus Supplement) and
the accompanying prospectus dated April 10, 2009 that form part of the Companys effective
registration statement on Form S-3, as amended (File No. 333-158081) (the Registration
Statement). In connection with the filing of the Prospectus Supplement, we have been asked to
provide you with legal opinions regarding the U.S. federal income tax matters specifically set
forth below under the caption titled Opinions.
Bases for Opinions
The opinions set forth in this letter are based on relevant current 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, applicable legislative history, and the administrative rulings and practices of the
Internal Revenue Service (the IRS), including its practices and policies in issuing private
letter rulings, which are not binding on the IRS 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 by the IRS, Congress and the courts (as applicable), which may or may not be retroactive in
effect and which might result in material modifications of our opinions. Our opinions do not
foreclose the possibility of a contrary
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Colonial Properties Trust
December 10, 2010
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Colonial Properties Trust
December 10, 2010
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determination by the IRS or a court of competent jurisdiction, or of a contrary position
taken by the IRS or the Treasury Department in regulations or rulings issued in the future. In
this regard, an opinion of counsel with respect to an issue represents counsels best professional
judgment with respect to the outcome on the merits with respect to such issue, if such issue were
to be litigated, but an opinion is not binding on the IRS or the courts, and is not a guarantee
that the IRS will not assert a contrary position with respect to such issue or that a court will
not sustain such a position asserted by the IRS.
In rendering the following opinions, we have examined such statutes, regulations, records,
agreements, certificates and other documents as we have considered necessary or appropriate as a
basis for the opinions, including, but not limited to (1) the Registration Statement on Form S-3
(No. 333-158081); (2) the Prospectus Supplement, (3) the Companys Current Report on Form 8-K dated
May 10, 2010 (the May Form 8-K); (4) the Companys Current Report on Form 8-K dated December 10,
2010 (the December Form 8-K); and (5) certain organizational documents of the Company and certain
of its subsidiaries (those documents referred to in clauses (1) through (5), the Reviewed
Documents).
The opinions set forth in this letter are premised on, among other things, the written
representations of the Company contained in a letter to us dated as of the date hereof (the
Management Representation Letter). Although we have discussed the Management Representation
Letter with the Company we have not made an independent investigation or audit of the facts set
forth in the Reviewed Documents and the Management Representation Letter. We consequently have
relied upon the representations and statements of the Company as described in the Reviewed
Documents and the Management Representation Letter, and assumed that the information presented in
such documents or otherwise furnished to us is accurate and complete in all material respects.
In this regard, we have assumed with your consent the following:
(1) | that (A) all of the representations and statements as to factual matters set forth in the Reviewed Documents and the Management Representation Letter are true, correct, and complete as of the date hereof, (B) any representation or statement in the Reviewed Documents and the Management Representation Letter made as a belief or made to the knowledge of or similarly qualified is true, correct and complete as of the date hereof, without such qualification, (C) each agreement described in the Reviewed Documents is valid and binding in accordance with its terms, and (D) each of the obligations of the Company, and its subsidiaries, as described in the Reviewed Documents, has been or will be performed or satisfied in accordance with its terms; | ||
(2) | 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; | ||
(3) | that any documents as to which we have reviewed only a form were or will be duly executed without material changes from the form reviewed by us; and | ||
(4) | from and after the date of this letter, the Company will comply with its representation contained in the Management Representation Letter that it will utilize all appropriate |
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Colonial Properties Trust
December 10, 2010
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December 10, 2010
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savings provisions (including the provisions of Sections 856(c)(6), 856(c)(7), and 856(g) of the Code, and the provision included in Section 856(c)(4) of the Code (flush language) allowing for the disposal of assets within 30 days after the close of a calendar quarter, and all available deficiency dividend procedures) available to the Company under the Code in order to correct any violations of the applicable REIT qualification requirements of Sections 856 and 857 of the Code, to the full extent the remedies under such provisions are available, but only to the extent available. |
Any material variation or difference in the facts from those set forth in the documents that we
have reviewed and upon which we have relied (including, in particular, the Management
Representation Letter) may adversely affect the conclusions stated herein.
Opinions
Based upon and subject to the assumptions and qualifications set forth herein, including, without
limitation, the discussion in the next two paragraphs below, we are of the opinion that:
(1) | for the taxable years ended December 31, 2007 through December 31, 2009, the Company has been organized and has operated in conformity with the requirements for qualification as a REIT under the Code, and the Companys current organization and current and proposed method of operation (as described in the Prospectus Supplement, which incorporates by reference Exhibit 99.1 of the May Form 8-K and the December Form 8-K, and the Management Representation Letter) will enable it to meet the requirements for qualification and taxation as a REIT under the Code for its taxable year ending December 31, 2010, and for future taxable years; and | ||
(2) | the portions of the discussion under the caption Material Federal Income Tax Consequences included in Exhibit 99.1 of the May Form 8-K that describe applicable U.S. federal income tax law, as modified by the discussion under the caption United States Federal Income Tax Consequences Sunset of Tax Provisions included in the December Form 8-K, are correct in all material respects as of the date hereof. |
The Companys qualification and taxation as a REIT under the Code will depend upon the ability of
the Company to meet on an ongoing basis (through actual quarterly and annual operating results,
distribution levels, diversity of share ownership and otherwise) the various qualification tests
imposed under the Code, and upon the Company utilizing any and all appropriate savings provisions
(including the provisions of Sections 856(c)(6), 856(c)(7), and 856(g) of the Code and the
provision included in Section 856(c)(4) of the Code (flush language) allowing for the disposal of
assets within 30 days after the close of a calendar quarter, and all available deficiency dividend
procedures) available to the Company under the Code to correct violations of specified REIT
qualification requirements of Sections 856 and 857 of the Code. Our opinions set forth above do
not foreclose the possibility that the Company may have to utilize one or more of these savings
provisions in the future, which could require the Company to pay an excise or penalty tax (which
could be significant in amount) in order to maintain its REIT qualification. We have not
undertaken to review the Companys compliance with these requirements on a continuing basis.
Accordingly, no assurance can be given that the actual results of the Companys operations, the
sources of its income, the nature of its assets, the level of its distributions to shareholders and
the diversity of its
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Colonial Properties Trust
December 10, 2010
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Colonial Properties Trust
December 10, 2010
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share ownership for any given taxable year will satisfy the requirements under the Code for
qualification and taxation as a REIT.
This opinion letter addresses only the specific U.S. federal income tax matters set forth above and
does not address any other federal, state, local or foreign legal or tax issues.
This opinion letter has been prepared for your use in connection with the filing of the Prospectus
Supplement and speaks as of the date hereof. We assume no obligation by reason of this opinion
letter or otherwise to advise you of any changes in our opinions subsequent to the effective date
of the Prospectus Supplement. Except as provided in the next paragraph, this opinion letter may
not be distributed, quoted in whole or in part or otherwise reproduced in any document, or filed
with any governmental agency without our express written consent.
We hereby consent to the filing of this opinion letter as Exhibit 8.1 to the Prospectus Supplement
and to the reference to Hogan Lovells US LLP. under the caption Legal Matters in the
Prospectus Supplement. In giving this consent, however, we do not admit thereby that we are an
expert within the meaning of the Securities Act of 1933, as amended.
Very truly yours,
/s/ HOGAN LOVELLS US LLP
HOGAN LOVELLS US LLP