Exhibit 5
| Teachers Insurance and Annuity Association of America | George W. Madison | |||
| College Retirement Equities Fund | Executive Vice President | |||
| 730 Third Avenue | and General Counsel | |||
| New York, NY 10017-3206 | ||||
| (212)490-9000 |
April 28, 2008
Board of Trustees of
Teachers Insurance and Annuity Association of America
730 Third Avenue
New York, New York 10017-3206
Ladies and Gentlemen:
This opinion is furnished in connection with the Registration Statement on Form S-1 (File No. 333-149862) (as amended, the “Registration Statement") of the TIAA Real Estate Account (the “Account”) being filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended. Interests in the Account are offered through endorsements to certain individual, group and tax-deferred annuity contracts and through income-paying contracts (collectively, the “Contracts”) issued by Teachers Insurance and Annuity Association of America (“TIAA”).
I have examined the Charter, Bylaws and other corporate records of TIAA, including TIAA’s Plan of Operations for Separate Account Business, and other organizational records of the Account, and the relevant statutes and regulations of the State of New York. On the basis of such examination, it is my opinion that:
| 1. | TIAA is a life insurance company duly organized and validly existing under the laws of the State of New York. |
| 2. | The Separate Account is a "separate account" of TIAA within the meaning ofSection 4240 of the New York Insurance Law, duly established by a resolution ofTIAA's Board of Trustees and validly existing under the laws of the State of NewYork. |
| 3. | To the extent New York State law governs, the Contracts have been dulyauthorized by TIAA and, when issued as contemplated by the RegistrationStatement, will constitute legal, validly issued and binding obligations of TIAAenforceable in accordance with their terms, subject, as to enforceability, toapplicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratoriumor other laws affecting creditors’ rights generally from time to time in effect and togeneral principles of equity (regardless of whether enforceability is considered in aproceeding in equity or at law). |
I hereby consent to the use of this opinion as an exhibit to the Registration Statement, and to the reference to my name under the heading "Legal Matters" in the Registration Statement.
Sincerely,
/s/ George W. Madison
George W. Madison
Executive Vice President and General Counsel
