EXHIBIT 8.1
LOCKE LIDDELL & SAPP LLP
ATTORNEYS & COUNSELORS
2200 ROSS AVENUE (214) 740-8000
SUITE 2200 Fax: (214) 740-8800
DALLAS, TEXAS 75201-6776 AUSTIN o DALLAS o HOUSTON o NEW ORLEANS www.lockeliddell.com
June __, 2004
AmREIT
8 Greenway Plaza, Suite 824
Houston, Texas 77046
Ladies and Gentlemen:
We have acted as counsel to AmREIT, a Texas real estate investment
trust (the "Company"), in connection with the issuance and sale of class D
common shares of beneficial interest in the Company in accordance with the
Registration Statement of the Company on Form S-11 (the "Registration
Statement") and related prospectus in connection therewith (the "Prospectus"),
which Form S-11 was filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act").
For the purposes of rendering our opinion, we have examined and are
relying upon such documents (including all exhibits and schedules attached
thereto) as of this date that we have deemed relevant or necessary, including:
1. The declaration of trust of the Company, as amended, and bylaws of
the Company, as amended;
2. The Registration Statement; and
3. Such other documents, records and instruments as we have deemed
necessary in order to enable us to render the opinion referred to in this
letter, and our opinion is conditioned upon (without any independent
investigation or review thereof) the truth and accuracy, at all relevant times,
of the factual representations and warranties, covenants and statements
contained therein.
This opinion is also subject to and conditioned upon the factual
representations contained in written officer's certificates to counsel executed
by officers of the Company (the "Representation Letters"). The initial and
continuing truth and accuracy of the representations contained in the
Representation Letters at all relevant times constitutes an integral basis for
the opinion expressed herein and this opinion is conditioned upon the initial
and continuing truth and accuracy of these representations at all relevant
times.
We have reviewed the descriptions set forth in the Registration
Statement of the Company and its investments, activities, operations and
governance. We have relied upon the facts set forth in the Registration
Statement and upon the factual representations of officers of the
AmREIT
June __, 2004
Page 2
Company. In addition, we have relied on certain additional facts and assumptions
described below. In connection with rendering this opinion, we have assumed to
be true and are relying upon (without any independent investigation or review
thereof), and our opinion is conditioned upon the correctness of, the following:
A. The authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as copies, and
authenticity of the originals of such documents, and the conformity of final
documents to all documents submitted to us as drafts, and the authenticity of
such final documents;
B. The genuineness of all signatures, the due authorization, execution
and delivery of all documents by all parties thereto and the due authority of
all persons executing such documents (other than persons executing such
documents on behalf of the Company);
C. All representations and statements set forth in such documents
(including the Representation Letters) are true and correct;
D. All obligations imposed by any such documents on the parties thereto
have been or will be performed or satisfied in accordance with their terms;
E. All records made available to us are accurate and complete;
F. All representations, warranties and other statements made by all
parties are true and correct; and
G. All covenants contained in the Representation Letters have been and
will be performed without waiver or breach of any provision thereof.
We have further assumed the accuracy of the statements and descriptions
of the Company's intended activities as described in the Registration Statement
and the Prospectus and that the Company will operate in accordance with the
method of operation described in the Registration Statement and the Prospectus
(and the Representation Letters). We have also assumed, without investigation,
that all documents, certificates, representations, warranties and covenants upon
which we have relied in rendering the opinions set forth below and that were
given or dated earlier than the date of this letter continue to remain accurate,
insofar as relevant to the opinions set forth herein, from such earlier date
through and including the date of this letter.
Based upon our examination of the foregoing items, subject to the
assumptions, exceptions, limitations and qualifications set forth herein and
therein, we are of the opinion that the Company qualified as a REIT under the
Internal Revenue Code of 1986, as amended (the "Code") for its taxable year
ended December 31, 2003, the Company's form of organization and its manner of
operation is in conformity with the requirements for qualification and taxation
as a REIT as of the date of this opinion, the Company's proposed manner of
operation and diversity of equity ownership will enable the Company to continue
to satisfy the requirements for qualification as a REIT for the calendar year
2004 and the discussion contained under the caption
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June __, 2004
Page 3
"Federal Income Tax Consequences" in the Prospectus accurately reflects existing
law and fairly addresses the material federal income tax issues described
therein; provided, in each case, that, the Company operates in accordance with
the methods of operation described in the Registration Statement and the
Prospectus, and in a manner consistent with the representations in the
Representation Letters concerning the Company's intended method of operation.
In addition to the assumptions set forth above, this opinion is subject
to the following exceptions, limitations and qualifications:
1. Our opinions expressed herein are based upon interpretation of the
current provisions of the Code and existing judicial decisions, administrative
regulations and published rulings and procedures. Our opinions only represent
our best judgment and are not binding upon the Internal Revenue Service or
courts and there is no assurance that the Internal Revenue Service will not
successfully challenge the conclusions set forth herein. The Internal Revenue
Service has not yet issued regulations or administrative interpretations with
respect to various provisions of the Code relating to REIT qualification.
Consequently, no assurance can be given that future legislative, judicial or
administrative changes, on either a prospective or retroactive basis, would not
adversely affect the accuracy of the conclusions stated herein. We undertake no
obligation to advise you of changes in law which may occur after the date
hereof.
2. Our opinions are limited to the federal income tax matters addressed
herein, and no other opinions are rendered with respect to any other matter not
specifically set forth in the foregoing opinion.
3. Our opinions are limited in all respects to the federal tax law of
the United States and we express no opinion as to various state, local or
foreign tax consequences.
4. The Company's qualification and taxation as a REIT depend upon the
Company's ability to satisfy through actual operating results the applicable
asset composition, source of income, shareholder diversification, distribution,
record keeping and other requirements of the Code necessary to qualify and be
taxed as a REIT.
5. The foregoing opinions are based upon the proposed method of
operation as described in the Registration Statement and the Prospectus and
facts stated in the Representation Letters and other documents described herein.
We undertake no obligation to review at any time in the future whether the
Company has fulfilled the requirements listed in paragraph 4 and, consequently,
no assurance can be given that the actual results of the Company's operations
for any taxable year will satisfy the requirements of the Code necessary to
qualify or be taxed as a REIT.
6. In the event any one of the statements, representations, warranties,
covenants or assumptions we have relied upon to issue this opinion is incorrect
in a material respect, our opinions might be adversely affected and may not be
relied upon.
AmREIT
June __, 2004
Page 4
This opinion is furnished to you for the purpose of complying with
applicable securities laws. This opinion may not be used or relied upon by any
other person other than your investors or for any other purpose and may not be
circulated, quoted or otherwise referred to for any purpose without our prior
written consent. We hereby consent to the reference to us under the caption
"Federal Income Tax Consequences" in the Registration Statement, and to the
filing of this opinion as an Exhibit to the Registration Statement, without
implying or admitting that we are experts within the meaning of the Securities
Act with respect to any part of the Registration Statement.
LOCKE LIDDELL & SAPP LLP
By:
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Donald A. Hammett, Jr.