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EXHIBIT 5.1
February 19, 1997
Essex Property Trust, Inc.
777 California Avenue
Palo Alto, California 94304
Dear Sirs:
We are acting as counsel to Essex Property Trust, Inc., a Maryland
corporation (the "Company"), in connection with the shelf registration by the
Company of $175,000,000 in maximum aggregate offering price of (i) shares of the
Company's Common Stock, par value $.0001 per share (the "Common Stock"), (ii)
shares of the Company's preferred stock ("Preferred Stock"), (iii) shares of the
Company's Preferred Stock represented by depositary shares ("Depositary Shares")
and (iv) warrants to purchase shares of the Company's Common Stock and Preferred
Stock (the "Warrants"). The Common Stock, Preferred Stock, Depositary Shares and
Warrants are the subject of a Registration Statement (the "Registration
Statement") filed by the Company on Form S-3 under the Securities Act of 1933,
as amended (the "Act").
In our capacity as your counsel in connection with such registration,
we are familiar with the proceedings taken and proposed to be taken by the
Company in connection with the authorization and issuance of the Common Stock,
Preferred Stock, Depositary Shares and Warrants, and for the purposes of this
opinion, have assumed such proceedings will be timely completed in the manner
presently proposed. In addition, we have made such legal and factual
examinations and inquiries, including an examination of originals or copies
certified or otherwise identified to our satisfaction of such documents,
corporate records and instruments, as we have deemed necessary or appropriate
for purposes of this opinion.
Based upon and subject to the foregoing, it is our opinion that:
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Essex Property Trust, Inc.
February 19, 1997
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(1) The Company has authority pursuant to its Articles of
Incorporation to issue the shares of Common Stock to be registered under the
Registration Statement and (a) upon the adoption by the Board of Directors of a
resolution in form and content required by applicable law, (b) upon compliance
with the applicable provisions of the Act and such state "blue sky" or
securities laws as may be applicable and (c) upon issuance and delivery of and
payment for such shares in the manner contemplated by the Registration Statement
and/or the applicable Prospectus Supplement, such shares of Common Stock will be
legally issued, fully paid, and nonassessable.
(2) The Company has authority pursuant to its Articles of Incorporation
to issue the shares of Preferred Stock to be registered under the Registration
Statement and (a) upon the adoption by the Board of Directors of a resolution in
form and content required by applicable law, (b) upon compliance with the
applicable provisions of the Act and such state "blue sky" or securities laws as
may be applicable, (c) upon the adoption by the Company's Board of Directors and
the due execution and filing by the Company with the Maryland State Department
of Assessments and Taxation (the "SDAT") of Articles Supplementary establishing
the preferences, limitations and relative voting and other rights of each series
of Preferred Stock prior to issuance thereof and (d) upon issuance and delivery
of and payment for such shares in the manner contemplated by the Registration
Statement and/or the applicable Prospectus Supplement, such shares of Preferred
Stock will be legally issued, fully paid, and nonassessable.
(3) The Company has authority pursuant to its Articles of Incorporation
to issue the Warrants to be registered under the Registration Statement. The
shares of Common Stock and shares of Preferred Stock issuable upon exercise of
the Warrants will have been duly and validly authorized (a) upon the adoption by
the Board of Directors of a resolution in form and content as required by
applicable law, (b) upon compliance with the applicable provisions of the Act
and such state "blue sky" or securities laws as may be applicable and (c) with
respect to such shares of Preferred Stock, upon the adoption by the Company's
Board of Directors and the due execution and filing by the Company with the
Maryland SDAT of Articles Supplementary establishing the preferences,
limitations and relative voting and other rights of each series of Preferred
Stock prior to issuance thereof. The shares of Common Stock and shares of
Preferred Stock issuable upon exercise of the Warrants, when duly and validly
authorized and when issued in the manner contemplated by the Registration
Statement and/or applicable Prospectus Supplement and in accordance with the
terms of the warrant agreement relating to such Warrants and at a price therein
provided for, will be legally issued, fully paid and nonassessable.
(4) The Company has authority pursuant to its Articles of Incorporation
to issue Depositary Shares to be registered under the Registration Statement and
when (a) a
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Essex Property Trust, Inc.
February 19, 1997
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deposit agreement substantially as described in the Registration Statement has
been duly executed and delivered by the Company and a depositary, (b) the
depositary receipts representing the Depositary Shares in the form contemplated
and authorized by such deposit agreement have been duly executed and delivered
by such depositary and delivered to and paid for by the purchasers thereof in
the manner contemplated by the Registration Statement and/or the applicable
prospectus supplement and (c) all corporate action necessary for the issuance of
such Depositary Shares and the underlying Preferred Stock has been taken
(including but not limited to action establishing the preferences, limitations
and relative voting and other rights of such Preferred Stock prior to issuance
thereof), such Depositary Shares will be legally issued and will entitle the
holders thereof to the rights specified in the deposit agreement relating to
such Depositary Shares.
To the extent that the obligations of the Company under the deposit
agreement may be dependent upon such matters, we have assumed for purposes of
this opinion (i) that the applicable depositary is duly organized, validly
existing and in good standing under the laws of its jurisdiction of organization
and is duly qualified to engage in the activities contemplated by the applicable
deposit agreement, (ii) that such deposit agreement has been duly authorized,
executed and delivered by and constitutes the legal, valid and binding
obligation of such depositary enforceable in accordance with its respective
terms, (iii) that such depositary is in compliance, generally and with respect
to acting as a depositary under the applicable deposit agreement with all
applicable laws and regulations and (iv) that such depositary has the requisite
organizational and legal power and authority to perform its obligations under
the applicable deposit agreement.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the reference to us under the heading "Legal
Matters" in the Registration Statement, the Prospectus constituting a part
thereof and any amendments thereto.
Very truly yours,
MORRISON & FOERSTER LLP