May 31, 2001
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, NY 10017-3909
Re: Cohen & Steers Total Return Realty Fund, Inc.
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Ladies and Gentlemen:
We have acted as special Maryland counsel to Cohen & Steers Total
Return Realty Fund, Inc., a Maryland corporation ("RFI"), in connection with an
Agreement and Plan of Reorganization (the "Agreement"), dated as of March 30,
2001, between RFI and Cohen & Steers Realty Income Fund, Inc. ("RIF"), a
Maryland corporation, pursuant to which RFI will acquire all of the assets and
liabilities of RIF in exchange for shares of common stock, $.001 par value, of
RFI (the "Shares"), and cash in lieu of any fractional RFI shares, which will
then be distributed to the holders of RIF common stock, $.01 par value.
We have examined: (i) the Registration Statement on Form N-14, File No.
333-56510 and 811-07154, filed by RFI under the Securities Act of 1933, as
amended (the "Act") and the Investment Company Act of 1940, as amended, as it
became effective under the Act (the "Registration Statement"), and the
Registration Statement on Form N-14 filed by RFI pursuant to Rule 462(b) under
the rules and regulations of the Securities and Exchange Commission under the
Act (the "Rule 462(b) Registration Statement" and together with Registration
Statement, the "Registration Statements"), (ii) RFI's Charter and Bylaws and
(iii) the Agreement. We have also examined and relied on a certificate of the
Maryland State Department of Assessments and Taxation ("SDAT") to the effect
that RFI is duly incorporated and existing under the laws of the State of
Maryland and is in good standing and duly authorized to transact business in the
State of Maryland. We have also reviewed Articles of Transfer between RFI and
RIF as accepted for record by SDAT and effective as of 4:00 p.m. on the date
hereof (the "Articles of Transfer").
Simpson Thacher & Bartlett
May 31, 2001
Page 2
We have also examined and relied on such other corporate records of
RFI, including a certificate of an appropriate officer of RFI with respect to
RFI Board and stockholder actions with respect to the Reorganization and certain
other matters, and such other documents as we have deemed necessary to render
the opinion expressed herein. We have assumed, without independent verification,
the genuineness of all signatures on documents that we have reviewed, the
authenticity of all documents submitted to us as originals, and the conformity
with originals of all documents submitted to us as copies.
We have also assumed that the terms of the Agreement are fair and
reasonable to RFI.
Based on the foregoing and subject to the qualifications set forth
below, we are of the opinion that:
1. RFI is a corporation duly organized, validly existing and in good
standing under the laws of the State of Maryland.
2. The Shares have been duly authorized and, when the Shares have been
issued pursuant to the Agreement and the Articles of Transfer and in the manner
described in the Registration Statements, the Shares will be validly issued,
fully paid and nonassessable under the laws of the State of Maryland.
This letter expresses our opinion with respect to the Maryland General
Corporation Law governing such matters as due organization and the authorization
and issuance of stock. It does not extend to the securities or "Blue Sky" laws
of Maryland, to federal securities laws, or to other laws.
Simpson Thacher & Bartlett
May 31, 2001
Page 3
You may rely on this opinion in rendering your opinion to RFI that is
to be filed as an exhibit to the Registration Statements. We consent to the
filing of this opinion as an exhibit to the Registration Statements and to
the reference to us in the Prospectus under the caption "Legal Matters." We do
not thereby admit that we are "experts" within the meaning of the Securities
Act of 1933 and the regulations thereunder. This opinion may not be relied on
by any other person or for any other purpose without our prior written consent.
Very truly yours,
Venabler, Baetjer and Howard, LLP