EXHIBIT 8.1
OPINION OF BATTLE FOWLER LLP
212-856-7188
212-856-7810
rotoole@battlefowler.com
March 1, 2000
Acadia Realty Trust
20 Soundview Marketplace
Port Washington, NY 11050
Re: Tax opinion
Gentlemen:
We have acted as counsel to Acadia Realty Trust, a Maryland
real estate investment trust (the "Company"), in connection with the
registration of up to 26,719,319 common shares of beneficial interest of the
Company (the "Shares"), $0.001 par value. The Shares may be offered for sale by
selling stockholders (the "Offering") pursuant to a registration statement (the
"Registration Statement") to be filed by the Company with the Securities and
Exchange Commission on Form S-3. All of the net proceeds of the Offering will be
retained by the selling stockholders and none of the net proceeds of the
Offering will be contributed to the Company or to Acadia Realty Limited
Partnership, a Delaware limited partnership (the "Operating Partnership"). You
have requested our opinion as to certain federal income tax matters in
connection with the Offering.
The Operating Partnership owns equity interests in existing
shopping centers (and certain other real property) and associated personal
property (the "Properties"). The Operating Partnership owns some of the
Properties directly and owns the remaining Properties through limited liability
companies or subsidiary partnerships (collectively, the "Subsidiary
Partnerships").
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Acadia Realty Trust March 1, 2000
In connection with the opinions rendered below, we have
examined the following:
1. the Declaration of Trust of the Company, as amended, as
filed with the Secretary of State of Maryland;
2. the Company's Amended Bylaws;
3. the Registration Statement, including the prospectus
contained as part of the Registration Statement (the "Prospectus");
4. the Amended and Restated Agreement of Limited Partnership
of the Operating Partnership dated as of March 22, 1999 (the "Operating
Partnership Agreement"), among the Company, as general partner and several other
limited partners;
5. the first and second amendments to the Operating
Partnership Agreement dated, respectively, as of November 15, 1999 and November
18, 1999;
6. the partnership agreements or operating agreements of the
Subsidiary Partnerships; and
7. such other documents as we have deemed necessary or
appropriate for purposes of this opinion.
In connection with the opinions rendered below, we have
assumed generally that:
1. each of the documents referred to above has been duly
authorized, executed, and delivered; is authentic, if an original, or is
accurate, if a copy; and has not been amended;
2. during each taxable year, including its short taxable year
ending December 31, 1993, the Company has operated and will operate in such a
manner that will make the representations contained in the Representation
Letter, dated March 1, 2000 and executed by the President of the Company (the
"Representation Letter"), true for such years;
3. the Company will not make any amendments to its
organizational documents or the Operating Partnership Agreement, after the date
of this opinion, that would affect the Company's qualification as a real estate
investment trust (a "REIT") for any taxable year; and
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Acadia Realty Trust March 1, 2000
4. neither the Operating Partnership or any Subsidiary
Partnership will make an election to be taxed as an association taxable as a
corporation or other than as a partnership pursuant to Treasury Regulation
ss.301.7701-3(c).
In connection with the opinions rendered below, we also have
relied upon the correctness of the representations contained in the
Representation Letter.
For purposes of our opinions, we made such factual and legal
inquiries, including examination of the documents set forth above, as we have
deemed necessary or appropriate for purposes of our opinion. For purposes of
rendering our opinion, however, we have not made an independent investigation of
the facts contained in the documents and assumptions set forth above, the
representations set forth in the Representation Letter, or the Prospectus. We
consequently have relied upon the representations in the Representation Letter
that the information presented in such documents or otherwise furnished to us is
accurate and complete in all material respects relevant to our opinion.
We have acted as counsel to the Company since August 12, 1998.
Accordingly, the first full taxable year for which we have acted as counsel to
the Company is the taxable year ending December 31, 1999, and our opinion
rendered below does not address any period before January 1, 1999. We have
assumed that, for periods prior to January 1, 1999, the Company qualified to be
taxed as a REIT pursuant to sections 856 through 860 of the Code and that the
Operating Partnership and the Subsidiary Partnerships were properly treated for
federal income tax purposes as partnerships and not as associations taxable as
corporations or as publicly traded partnerships.
In addition, to the extent that any of the representations
provided to us in the Representation Letter are with respect to matters set
forth in the Internal Revenue Code of 1986, as amended (the "Code"), or the
Treasury regulations thereunder (the "Regulations"), we have reviewed with the
individual making such representation the relevant portion of the Code and the
applicable Regulations and are reasonably satisfied that such individual
understands such provisions and is capable of making such representations.
Based on the documents and assumptions set forth above, the
representations set forth in the Representation Letter, and the discussion in
the Prospectus under the caption "Federal Income Tax Considerations" (which is
incorporated herein by reference), we are of the opinion that:
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Acadia Realty Trust March 1, 2000
(a) commencing with the Company's taxable year ending December
31, 1999, the Company qualified and will qualify to be taxed as a REIT
pursuant to sections 856 through 860 of the Code, and the Company's
proposed method of operation will enable it to continue to meet the
requirements for qualification and taxation as a REIT under the Code;
(b) the descriptions of the law and the legal conclusions
contained in the Prospectus under the caption "Federal Income Tax
Considerations" are correct in all material respects, and the
discussion contained therein fairly summarizes the federal tax
considerations that are material to a holder of the Common Shares; and
(c) the Operating Partnership and the Subsidiary Partnerships
will be treated for federal income tax purposes as partnerships and not
as associations taxable as corporations or as publicly traded
partnerships.
We assume no obligation to advise you of any changes in our opinion subsequent
to the delivery of this opinion letter. 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 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 stock ownership. We will not review on a
continuing basis the Company's compliance with the documents or assumptions set
forth above, or the representations set forth in the Representation Letter.
Accordingly, no assurance can be given that the actual results of the Company's
operations the sources of its income, the nature of its assets, the level of the
Company's distributions to its stockholders and the diversity of the Company's
stock ownership for any given taxable year will satisfy the requirements for
qualification and taxation as a REIT.
The foregoing opinions are based on current provisions of the
Code and the Regulations, published administrative interpretations thereof, and
published court decisions. The Internal Revenue Service has not issued
Regulations or administrative interpretations with respect to various provisions
of the Code relating to REIT qualification. No assurance can be given that the
law will not change in a way that will prevent the Company from qualifying as a
REIT, or the Operating Partnership or the Subsidiary Partnerships from being
classified as partnerships for federal income tax purposes.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement. We also consent to the references to Battle
Fowler LLP under the captions "Federal Income Tax Considerations" and "Legal
Matters" in the Prospectus.
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Acadia Realty Trust March 1, 2000
The foregoing opinions are limited to the federal income tax
matters addressed herein, and no other opinions are rendered with respect to
other federal tax matters or to any issues arising under the tax laws of any
state or locality. We undertake no obligation to update the opinions expressed
herein after the date of this letter.
Very truly yours,
/s/ Battle Fowler LLP
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