Attached files
file | filename |
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EX-5.1 - EX-5.1 - ESSEX PROPERTY TRUST, INC. | f58866exv5w1.htm |
8-K - FORM 8-K - ESSEX PROPERTY TRUST, INC. | f58866e8vk.htm |
EX-1.1 - EX-1.1 - ESSEX PROPERTY TRUST, INC. | f58866exv1w1.htm |
EX-4.1 - EX-4.1 - ESSEX PROPERTY TRUST, INC. | f58866exv4w1.htm |
EX-10.1 - EX-10.1 - ESSEX PROPERTY TRUST, INC. | f58866exv10w1.htm |
EX-99.1 - EX-99.1 - ESSEX PROPERTY TRUST, INC. | f58866exv99w1.htm |
Exhibit 8.1
Asia
Pacific
Bangkok
Beijing
Hanoi
Ho Chi Minh City
Hong Kong
Jakarta
Kuala Lumpur
Manila
Melbourne
Shanghai
Singapore
Sydney
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Tokyo
Europe &
Middle East
Abu Dhabi
Almaty
Amsterdam
Antwerp
Bahrain
Baku
Barcelona
Berlin
Brussels
Budapest
Cairo
Düsseldorf
Frankfurt / Main
Geneva
Kyiv
London
Madrid
Milan
Moscow
Munich
Paris
Prague
Riyadh
Rome
St. Petersburg
Stockholm
Vienna
Warsaw
Zurich
North & South
America
Bogotá
Brasilia
Buenos Aires
Caracas
Chicago
Dallas
Guadalajara
Houston
Juarez
Mexico City
Miami
Monterrey
New York
Palo Alto
Porto Alegre
Rio de Janeiro
San Diego
San Francisco
Santiago
Sao Paulo
Tijuana
Toronto
Valencia
Washington, DC
Bangkok
Beijing
Hanoi
Ho Chi Minh City
Hong Kong
Jakarta
Kuala Lumpur
Manila
Melbourne
Shanghai
Singapore
Sydney
Taipei
Tokyo
Europe &
Middle East
Abu Dhabi
Almaty
Amsterdam
Antwerp
Bahrain
Baku
Barcelona
Berlin
Brussels
Budapest
Cairo
Düsseldorf
Frankfurt / Main
Geneva
Kyiv
London
Madrid
Milan
Moscow
Munich
Paris
Prague
Riyadh
Rome
St. Petersburg
Stockholm
Vienna
Warsaw
Zurich
North & South
America
Bogotá
Brasilia
Buenos Aires
Caracas
Chicago
Dallas
Guadalajara
Houston
Juarez
Mexico City
Miami
Monterrey
New York
Palo Alto
Porto Alegre
Rio de Janeiro
San Diego
San Francisco
Santiago
Sao Paulo
Tijuana
Toronto
Valencia
Washington, DC
Baker
& McKenzie LLP
One Prudential Plaza, Suite 3500
130 East Randolph Drive
Chicago, Illinois 60601, USA
Tel: +1 312 861 8000
Fax: +1 312 861 2899
www.bakernet.com
One Prudential Plaza, Suite 3500
130 East Randolph Drive
Chicago, Illinois 60601, USA
Tel: +1 312 861 8000
Fax: +1 312 861 2899
www.bakernet.com
April 13, 2011
Essex Property Trust, Inc.
925 East Meadow Drive
Palo Alto, California 94303
925 East Meadow Drive
Palo Alto, California 94303
RE: | Qualification of Essex Property Trust, Inc. as a Real Estate Investment Trust |
Ladies and Gentlemen:
We have acted as tax counsel to Essex Property Trust, Inc., a Maryland corporation (the
Company), in connection with the issuance and sale of 2,600,000 shares of the Companys
7.125% Series H Cumulative Redeemable Preferred Stock, par value $0.0001 per share (the
Preferred Stock). The Preferred Stock is the subject of a prospectus supplement dated
April 8, 2011 (the Prospectus Supplement) to a prospectus (the Basic
Prospectus; and collectively with the Prospectus Supplement, the Prospectus)
included as part of a registration statement (the Registration Statement) on Form S-3
(File No. 333-165693) that was filed on behalf of the Company and Essex Portfolio, L.P. (the
Operating Partnership) on March 25, 2010 with the Securities Exchange Commission (the
SEC) pursuant to the Securities Act of 1933, as amended (the Act).
You have requested our opinion as to certain federal income tax matters regarding the Company. In
our capacity as counsel to the Company and for purposes of rendering this opinion, we have examined
and relied upon the following, with your consent: (i) that certain certificate dated April 13, 2011
(the Certificate) delivered to Baker & McKenzie LLP by the Company and the Operating
Partnership, which provides certain representations by them relevant to this opinion; (ii) the
Registration Statement and the Prospectus; (iii) the partnership agreement of the Operating
Partnership; (iv) the bylaws of the Company; and (v) such other documents as we have considered
relevant to our analysis. In our examination of such documents, we have assumed the authenticity
of original documents, the accuracy of copies, the genuineness of signatures, and the legal
capacity of signatories. We have also assumed that all parties to such documents have acted, and
will act, in accordance with the terms of such documents.
Furthermore, our opinion is based on (a) our understanding of the facts as represented to us in the
Certificate and (b) the assumption that (i) the Operating Partnership has a valid legal existence
under the laws of the state in which it was formed and has operated in accordance with the laws of
such state, (ii) the Company and the Operating Partnership are operated, and will continue to be
operated, in the manner described in the Certificate, (iii) the facts
Baker
& McKenzie LLP is a member of Baker & McKenzie International, a
Swiss Verein.
contained in the Registration Statement and the Prospectus are true and complete in all material
respects, (iv) all representations of fact contained in the Certificate are true and complete in
all material respects and (v) any representation of fact in the Certificate that is made to the
knowledge or similarly qualified is correct without such qualification. We have not undertaken any
independent inquiry into or verification of these facts either in the course of our representation
of the Company or for the purpose of rendering this opinion. While we have reviewed all
representations made to us to determine their reasonableness, we have no assurance that they are or
will ultimately prove to be accurate.
We also note that the tax consequences addressed herein depend upon the actual occurrence of events
in the future, which events may or may not be consistent with any representations made to us for
purposes of this opinion. In particular, the qualification and taxation of the Company as a real
estate investment trust (a REIT) for federal income tax purposes depend upon the
Companys ability to meet on a continuing basis certain distribution levels, diversity of stock
ownership and the various qualification tests imposed by the Internal Revenue Code of 1986, as
amended (the Code). To the extent that the facts differ from those represented to or
assumed by us herein, our opinion should not be relied upon.
Our opinion herein is based on existing law as contained in the Code, final and temporary Treasury
Regulations promulgated thereunder, administrative pronouncements of the Internal Revenue Service
(the Service) and court decisions as of the date hereof. The provisions of the Code and
the Treasury Regulations, Service administrative pronouncements and case law upon which this
opinion is based could be changed at any time, perhaps with retroactive effect. In addition, some
of the issues under existing law that could significantly affect our opinion have not yet been
authoritatively addressed by the Service or the courts, and our opinion is not binding on the
Service or the courts. Hence, there can be no assurance that the Service will not challenge, or
that the courts will agree, with our conclusions.
Based upon, and subject to, the foregoing and the next paragraph below, we are of the opinion that:
(i) | Commencing with its taxable year ended December 31, 1994 through its taxable year ended December 31, 2010, the Company has been organized and has operated in conformity with the requirements for qualification and taxation as a REIT under the Code, and its organization and its present and proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT; and |
(ii) | The statements contained in the Basic Prospectus and the Prospectus Supplement under the captions Certain Material Federal Income Tax Considerations and Additional Federal Income Tax Considerations, respectively, insofar as such |
Essex Property Trust, Inc. April 13, 2011 |
Page 2 |
statements constitute matters of law, summaries of legal matters or legal conclusions, have been reviewed by us and fairly present and summarize, in all material respects, the matters referred to therein. |
We undertake no obligation to update this opinion, or to ascertain after the date hereof whether
circumstances occurring after such date may affect the conclusions set forth herein. We express no
opinion as to matters governed by any laws other than the Code, the Treasury Regulations, published
administrative announcements and rulings of the Service and court decisions.
This opinion is furnished to you solely for use in connection with the Prospectus Supplement. We
hereby consent to the filing of this opinion as an exhibit to the Registration Statement. We also
consent to the reference to our firm name in the Basic Prospectus and the Prospectus Supplement
under the captions Certain Material Federal Income Tax Considerations and Additional
Federal Income Tax Considerations, respectively, as well as under the caption Legal
Matters in such documents. In giving this consent, we do not admit that we come within the
categories of persons whose consent is required under Section 7 of the Act or the rules and
regulations of the SEC thereunder, nor do we thereby admit that we are experts with respect to any
part of the Registration Statement within the meaning of the term experts as used in the Act or
the rules and regulations of the SEC promulgated thereunder.
Very truly yours,
/s/ Baker & McKenzie LLP
Baker & McKenzie LLP
Essex Property Trust, Inc. April 13, 2011 |
Page 3 |