PEABODY & BROWN
A LAW PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
101 FEDERAL STREET
BOSTON, MASSACHUSETTS 02110-1832
(617) 345-1000
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WRITER'S DIRECT DIAL NUMBERS FAX: (617) 345-1300 MANCHESTER, NH
-------- PROVIDENCE, RI
WASHINGTON, DC
http://www.peabodybrown.com
October 14, 1997
Berkshire Realty Company, Inc.
470 Atlantic Avenue
Boston, MA 02210
Lehman Brothers
A.G. Edwards & Sons, Inc.
BT Alex. Brown
Legg Mason Wood Walker Incorporated
Salomon Brothers Inc.
as Co-Managing Underwriters
c/o Lehman Brothers
Three World Financial Center
New York, NY 10285
Re: Registration Statement on Form S-3
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Gentlemen:
We have acted as counsel to Berkshire Realty Company, Inc., a Delaware
corporation (the "Company"), in connection with the Registration Statement on
Form S-3 (the "Registration Statement") filed under the Securities Act of 1933,
as amended (the "Securities Act"), for the purposes of registering up to an
aggregate of $400,000,000 of Offered Securities as that term is defined in the
Registration Statement.
The Company has requested our opinion as to the Company's qualification
for federal income tax purposes as a real estate investment trust (a "REIT")
pursuant to Sections 856 through 860 of the Internal Revenue Code of 1986, as
amended (the "Code"), and the accuracy of the statements in the Registration
Statement set forth under the caption FEDERAL INCOME TAX CONSIDERATIONS.
In connection with the opinions rendered below, we have examined the
following documents:
PEABODY & BROWN
Berkshire Realty Company, Inc.
Lehman Brothers
A.G. Edwards & Sons, Inc.
BT Alex. Brown
Legg Mason Wood Walker Incorporated
Salomon Brothers Inc.
October 14, 1997
Page 2
1. the Registration Statement and the Prospectus filed therewith and all
exhibits thereto;
2. the Supplement to the Prospectus filed pursuant to Rule 424(b) under
the Securities Act of 1933 (the Prospectus, as supplemented by the
Supplement, shall be referred to herein as the Prospectus);
3. a copy of the Company's Restated Certificate of Incorporation, as
amended to date;
4. a copy of the Company's Bylaws; and
5. such other documents as we have deemed necessary or appropriate for
purposes of this opinion.
We have reviewed the Registration Statement, including the Prospectus and
the Prospectus Supplement, and the descriptions set forth therein of the Company
and its investments and activities. We have relied upon the representations of
the Company and its affiliates and certain officers thereof (including, without
limitation, representations contained in a Certificate of Company and Berkshire
Apartments, Inc. dated as of this date) regarding the manner in which the
Company and BRI OP Limited Partnership, A Delaware limited partnership (the
"Operating Partnership") have been and will continue to be owned and operated.
We have not independently investigated or verified all of such representations;
however, during the course of our representation, nothing has come to our
attention which would cause us to question the accuracy of such representations.
We, therefore, assume that such representations are true, correct and complete
and that all representations made "to the best of the knowledge and belief" of
any person(s) or party(ies) are and will be true, correct and complete as if
made without such qualification. We assume that the Company and the Operating
Partnership have been and will be operated in accordance with applicable laws
and the terms and conditions of applicable documents, and that the descriptions
of the Company and its investments and the proposed investments, activities,
operations and governance of the Company and the Operating Partnership set forth
in the Registration Statement continue to be true. In addition, we have relied
on certain additional facts and assumptions described below.
PEABODY & BROWN
Berkshire Realty Company, Inc.
Lehman Brothers
A.G. Edwards & Sons, Inc.
BT Alex. Brown
Legg Mason Wood Walker Incorporated
Salomon Brothers Inc.
October 14, 1997
Page 3
In examining all documents, we have assumed the genuineness of all
signatures thereon, the accuracy of all statements contained therein, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents furnished to us as certified or photographic
copies, and the completeness of all documents furnished to us. We have also
assumed the legal capacity (as distinct from authority) and competency of any
individual who has signed any instrument referred to herein. With respect to the
latter assumption, nothing has come to our attention giving us reasonable
grounds to question the correctness of such assumption.
The discussion and conclusions set forth below are based upon the Code,
the Income Tax Regulations and Procedure and Administration Regulations
promulgated thereunder and existing administrative and judicial interpretations
thereof, all of which are subject to change. No assurance can therefore be given
that the federal income tax consequences described below will not be altered in
the future. Capitalized terms used and not defined herein shall have the
meanings stated in the Prospectus.
Based upon and subject to the foregoing, we are of the opinion that:
1. Commencing with its taxable year ended December 31, 1991, Company has
been organized and operated in conformity with the requirements for
qualification and taxation as a REIT under the Code, and the proposed method of
operation by the Company and the Operating Partnership, as described in the
representations referred to above, will enable the Company to continue to meet
the requirements for qualification and taxation as a REIT under the Code.
2. The statements in the Registration Statement set forth under the
caption FEDERAL INCOME TAX CONSIDERATIONS, to the extent such information
constitutes matters of law, summaries of legal matters, or legal conclusions,
have been reviewed by us and are accurate in all material respects.
We express no opinion with respect to the transactions described in the
Registration Statement other than those expressly set forth herein. You should
recognize that our opinions are not binding on the IRS and that the IRS may
disagree with the opinions contained herein. Although we believe that our
opinions will be sustained if challenged, there can be no assurance that this
will be the case. Except as specifically discussed above, the opinions expressed
herein are based upon the law as it currently exists. Consequently, future
changes in the law may cause the federal income tax treatment of the
transactions described herein to be materially and adversely different from that
described above.
PEABODY & BROWN
Berkshire Realty Company, Inc.
Lehman Brothers
A.G. Edwards & Sons, Inc.
BT Alex. Brown
Legg Mason Wood Walker Incorporated
Salomon Brothers Inc.
October 14, 1997
Page 4
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm in the Registration
Statement. In giving this consent, we do not admit that we are in the category
of persons whose consent is required by Section 7 of the Securities Act of 1933
Act, as amended, or the rules and regulations promulgated thereunder by the
Securities and Exchange Commission.
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,
locality or foreign country. We undertake no obligation to update the opinions
expressed herein after the date of this letter. This opinion letter is solely
for the information and use of the addressee and may not be relied upon for any
purpose by any other person without our express written consent.
Very truly yours,
/s/ PEABODY & BROWN
PEABODY & BROWN