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[VENABLE LLP LOGO] Two Hopkins Plaza, Suite 1800 Telephone 410-244-7400 www.venable.com
Baltimore, Maryland 21201-2978 Facsimile 410-244-7742
EXHIBIT 5.1
December 17, 2004
Arbor Realty Trust, Inc.
333 Earle Ovington Boulevard
Suite 900
Uniondale, New York 11533
Re: Arbor Realty Trust, Inc.
Ladies and Gentlemen:
We have served as special Maryland counsel to Arbor Realty Trust, Inc., a
Maryland corporation (the "Company"), in connection with certain matters of
Maryland law relating to the registration by the Company of up to 287,901 shares
(the "Shares") of common stock, par value $.01 per share (the "Common Stock"),
of the Company covered by the Registration Statement on Form S-8, as filed with
the United States Securities and Exchange Commission (the "Commission") by the
Company on or about the date hereof under the Securities Act of 1933, as amended
(the "1933 Act") (the "Registration Statement"). The Shares will be issued
pursuant to the 2003 Omnibus Stock Incentive Plan, as amended and restated, of
the Company (the "Plan"). We did not participate in the drafting of the Plan.
In connection with our representation of the Company, and as a basis for
the opinion hereinafter set forth, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of the following
documents (collectively, the "Documents"):
1. The Registration Statement and the related form of prospectus included
therein in the form in which it was filed with the Commission under the 1933
Act;
2. The charter of the Company (the "Charter"), certified as of a recent
date by the State Department of Assessments and Taxation of Maryland (the
"SDAT");
3. The Bylaws of the Company, certified as of the date hereof by an
officer of the Company;
4. Resolutions (the "Resolutions") adopted by the Board of Directors of
the Company and a duly authorized committee thereof, relating to the issuance
and
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Arbor Realty Trust, Inc.
December 17, 2004
Page 2
sale of the Shares and the approval of the Plan, certified as of the date
hereof by an officer of the Company;
5. Resolutions adopted by the stockholders of the Company approving the
Plan, certified as of the date hereof by an officer of the Company;
6. A certificate of the SDAT as to the good standing of the Company, dated
as of a recent date;
7. A certificate executed by an officer of the Company, dated as of the
date hereof; and
8. Such other documents and matters as we have deemed necessary or
appropriate to express the opinion set forth in this letter, subject to the
assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed the following:
1. Each individual executing any of the Documents, whether on behalf of
such individual or another person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party
(other than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any of the
Documents has duly and validly executed and delivered each of the Documents to
which such party is a signatory, and the obligations of such party set forth
therein are legal, valid and binding and are enforceable in accordance with all
stated terms.
4. All Documents submitted to us as originals are authentic. The form and
content of all Documents submitted to us as unexecuted drafts do not differ in
any respect relevant to this opinion from the form and content of such Documents
as executed and delivered. All Documents submitted to us as certified or
photostatic copies conform to the original documents. All signatures on all
Documents are genuine. All public records reviewed or relied upon by us or on
our behalf are true and complete. All representations, warranties, statements
and information contained in the Documents are true and complete. There has been
no oral or written modification of or amendment to any of the Documents, and
there has been no waiver of any provision of any of the Documents, by action or
omission of the parties or otherwise.
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December 17, 2004
Page 5
5. The Shares will not be issued in violation of the restrictions on
transfer and ownership contained in Article VII of the Charter. Upon issuance of
any of the Shares, the total number of shares of Common Stock issued and
outstanding will not exceed the total number of shares of Common Stock that the
Company is then authorized to issue under the Charter.
Based upon the foregoing, and subject to the assumptions, limitations and
qualifications stated herein, it is our opinion that:
1. The Company has been duly incorporated and is validly existing under
the laws of the State of Maryland and is in good standing with the SDAT.
2. The Shares have been duly authorized and, when and if issued and
delivered against payment therefor in accordance with the Resolutions and the
Plan, will be validly issued, fully paid and non-assessable.
The foregoing opinion is limited to the laws of the State of Maryland and
we do not express any opinion herein concerning any other law. We express no
opinion as to compliance with any federal or state securities laws, including
the securities laws of the State of Maryland, or as to federal or state laws
regarding fraudulent transfers. To the extent that any matter as to which our
opinion is expressed herein would be governed by the laws of any jurisdiction
other than the State of Maryland, we do not express any opinion on such matter.
The opinion expressed herein is limited to the matters specifically set
forth herein and no other opinion shall be inferred beyond the matters expressly
stated. We assume no obligation to supplement this opinion if any applicable law
changes after the date hereof or if we become aware of any fact that might
change the opinion expressed herein after the date hereof.
This opinion is being furnished to you for submission to the Commission as
an exhibit to the Registration Statement. We hereby consent to the filing of
this opinion as an exhibit to the Registration Statement and to the use of the
name of our firm therein. In giving this consent, we do not admit that we are
within the category of persons whose consent is required by Section 7 of the
1933 Act.
Very truly yours,
/s/ Venable LLP