Exhibit 8.1
191 Peachtree Street
Atlanta, Georgia 30303-1763
Telephone: 404/572-4600
Fax: 404-572-5100
www.kslaw.com
May 31, 2005
Post Properties, Inc.
Post Apartment Homes, L.P.
4401 Northside Parkway
Suite 800
Atlanta, Georgia 30327
Ladies and Gentlemen:
We have acted as counsel for Post Properties, Inc., a Georgia
corporation (the "Company") and Post Apartment Homes, L.P., a Georgia limited
partnership (the "Operating Partnership"), in connection with the registration
under the Securities Act of 1933, as amended (the "1933 Act"), and the rules and
regulations of the Securities and Exchange Commission (the "Commission")
thereunder, of $100,000,000 aggregate principal amount of 5.45% Notes due 2012
(the "Notes"), which are to be issued and sold by the Operating Partnership.
This opinion is being rendered at the Operating Partnership's request and
relates to the qualification of the Company as a real estate investment trust
("REIT") under the Internal Revenue Code of 1986, as amended (the "Code"), the
classification, for federal income tax purposes, of the Operating Partnership
and each of the partnerships and limited liability companies in which the
Operating Partnership has, at any time through the date hereof, held a material
interest (the "Pass-Through Affiliates"), and the discussion of the material
United States federal income tax consequences of the purchase, ownership and
disposition of the Notes in the prospectus dated March 5, 2001 (the
"Prospectus") under the caption "Federal Income Tax Considerations," as
supplemented by the discussion in the prospectus supplement dated May 25, 2005
(the "Prospectus Supplement") under the caption "Federal Income Tax
Consequences."
FACTS AND ASSUMPTIONS RELIED UPON
In rendering the opinion expressed herein, we have examined such
documents as we have deemed appropriate, including (but not limited to) (i) the
registration statement on Form S-3
Post Properties, Inc.
Post Apartment Homes, L.P.
May 31, 2005
Page 2
(Registration No. 333-55994) (the "Registration Statement"), filed by the
Company and the Operating Partnership with the Commission on February 21, 2001,
as it became effective under the 1933 Act, (ii) the Prospectus, (iii) the
Prospectus Supplement, and (iv) the analyses of qualifying income and assets
prepared by the Company with the assistance of PricewaterhouseCoopers LLP, the
Company's accounting firm. In our examination of documents, we have assumed,
with your consent, that all documents submitted to us are authentic originals,
or if submitted as photocopies or telecopies, that they faithfully reproduce the
originals thereof, that all such documents have been or will be duly executed to
the extent required, that all representations and statements set forth in such
documents are true and correct, and that all obligations imposed by any such
documents on the parties thereto have been or will be performed or satisfied in
accordance with their terms. We also have obtained such additional information
and representations as we have deemed relevant and necessary through
consultation with officers of the Company and 1499 Massachusetts Avenue, Inc.
("1499 Inc.") and with PricewaterhouseCoopers LLP, including representations
from the Company and 1499 Inc. in letters delivered to us on or about the date
hereof.
OPINION
Based upon and subject to the foregoing, we are of the opinion that:
(i) The Company was organized and has operated in conformity
with the requirements for qualification and taxation as a REIT under
the Code for each of its taxable years ended December 31, 1993 through
2004, and its organization and proposed method of operation will enable
it to continue to meet the requirements for qualification and taxation
as a REIT.
(ii) The Operating Partnership and each Pass-Through Affiliate
which is not 100% beneficially owned by the Operating Partnership are
properly classified as partnerships, and not as corporations,
associations taxable as corporations or "publicly traded partnerships"
taxable as corporations, for federal income tax purposes. Each
Pass-Through Affiliate that is 100% beneficially owned by the Operating
Partnership is disregarded for federal income tax purposes.
(iii) Although the discussion set forth in the Prospectus
under the caption "Federal Income Tax Considerations," as supplemented
by the discussion set forth in the Prospectus Supplement under the
caption "Federal Income Tax Consequences," does not purport to discuss
all possible United States federal income tax consequences of the
purchase, ownership, and disposition of the Notes, such discussion
constitutes, in all material respects, a fair and accurate summary
under current law of the material United States federal income tax
Post Properties, Inc.
Post Apartment Homes, L.P.
May 31, 2005
Page 3
consequences of the purchase, ownership and disposition of the Notes by
a holder who purchases such Notes, subject to the qualifications set
forth therein. The United States federal income tax consequences of an
investment in the Notes by an investor will depend upon that holder's
particular situation, and we express no opinion as to the completeness
of the discussions set forth in the referenced sections of the
Prospectus and the Prospectus Supplement as applied to any particular
holder.
The opinion expressed herein is based upon the current provisions of
the Code, the U.S. Treasury regulations promulgated thereunder, current
administrative positions of the U.S. Internal Revenue Service, and existing
judicial decisions, any of which could be changed at any time, possibly on a
retroactive basis. Any such changes could adversely affect the opinion rendered
herein and the tax consequences to the Company, the Operating Partnership, and
the investors in the Notes. In addition, as noted above, our opinion is based
solely on the documents that we have examined, the additional information that
we have obtained, and the representations that have been made to us, and cannot
be relied upon if any of the facts contained in such documents or in such
additional information is, or later becomes, inaccurate or if any of the
representations made to us is, or later becomes, inaccurate. We are not aware,
however, of any facts or circumstances contrary to or inconsistent with the
information, assumptions, and representations upon which we have relied for
purposes of this opinion. Finally, our opinion is limited to the tax matters
specifically covered thereby, and we have not been asked to address, nor have we
addressed, any other tax consequences of an investment in the Notes.
This opinion is given as of the date hereof, and we assume no
obligation to advise you after the date hereof of facts or circumstances that
come to our attention or changes in law that occur which could affect this
opinion. We hereby consent to the filing of this opinion as an Exhibit to a
current report on Form 8-K and to the references to our firm in the Prospectus
Supplement.
Very truly yours,
/s/ King & Spalding LLP