EXHIBIT 8.01
[MORRISON & FOERSTER LLP LETTERHEAD]
September 8, 2003
United Dominion Realty Trust, Inc.
1745 Shea Center Drive, Suite 200
Highlands Ranch, Colorado 80129
Ladies and Gentlemen:
We have acted as counsel to United Dominion Realty Trust, Inc., a
Maryland corporation (the "Company"), in connection with the offering by the
Company of 4,000,000 shares of its common stock, $1.00 par value per share (and
up to 600,000 additional shares to cover over-allotments) (the "Common Stock"),
pursuant to that certain Underwriting Agreement, dated September 5, 2003, by the
Company on the one hand and Wachovia Capital Markets, LLC, on the other hand.
The Common Stock is the subject of a registration statement (the "Registration
Statement") on Form S-3 (File No. 333-101611) filed by the Company with the
Securities Exchange Commission ("SEC") under the Securities Act of 1933 (the
"Securities Act"), a prospectus dated December 23, 2002 (the "Prospectus"), and
a supplement to the Prospectus (the "Prospectus Supplement") dated September 5,
2003. Capitalized terms not defined herein shall have the meanings ascribed to
them in the certificate (or incorporated therein by reference), dated September
8, 2003 (the "Certificate"), delivered to Morrison & Foerster LLP by the Company
and the Operating Partnerships which provides certain representations by them
relevant to this opinion.
You have requested our opinion as to certain federal income tax matters
regarding the Company and the Operating Partnerships. This opinion is solely for
the benefit of the Company, and may not be relied upon by, nor may copies be
delivered to, any other person without our prior written consent.
In our capacity as counsel to the Company and for purposes of rendering
this opinion, we have examined and relied upon the following, with your consent:
(i) the Certificate, (ii) the Registration Statement, the Prospectus and the
Prospectus Supplement, (iii) the Partnership Agreements of the Operating
Partnerships and (iv) such other documents as we have considered relevant to our
analysis. In our examination of such documents, we have assumed the authenticity
of original documents, the accuracy of copies, the genuineness of signatures,
and the legal capacity of signatories. We have also assumed
MORRISON & FOERSTER LLP
United Dominion Realty Trust, Inc.
September 8 2003
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that all parties to such documents have acted, and will act, in accordance with
the terms of such documents.
Furthermore, our opinion is based on (a) our understanding of the facts
as represented to us in the Certificate and (b) the assumption that (i) each of
the Partnerships has a valid legal existence under the laws of the state in
which it was formed and has operated in accordance with the laws of such state,
(ii) the Company and the Operating Partnerships are operated, and will continue
to be operated, in the manner described in the Certificate, (iii) the facts
contained in the Registration Statement, the Prospectus and the Prospectus
Supplement are true and complete in all material respects, (iv) all
representations of fact contained in the Certificate are true and complete in
all material respects, (v) any representation of fact in the Certificate that is
made "to the knowledge" or similarly qualified is correct without such
qualification and (vi) the Company qualified as a REIT for its 1998 taxable year
and all prior taxable years. We have not undertaken any independent inquiry into
or verification of these facts either in the course of our representation of the
Company or for the purpose of rendering this opinion. While we have reviewed all
representations made to us to determine their reasonableness, we have no
assurance that they are or will ultimately prove to be accurate.
We also note that the tax consequences addressed herein depend upon
the actual occurrence of events in the future, which events may or may not be
consistent with any representations made to us for purposes of this opinion. In
particular, the qualification and taxation of the Company as a REIT for federal
income tax purposes depend upon the Company's ability to meet on a continuing
basis certain distribution levels, diversity of stock ownership, and the various
qualification tests imposed by the Internal Revenue Code of 1986, as amended
(the "Code"). To the extent that the facts differ from those represented to or
assumed by us herein, our opinion should not be relied upon.
Our opinion herein is based on existing law as contained in the Code,
final and temporary Treasury Regulations promulgated thereunder, administrative
pronouncements of Internal Revenue Service (the "IRS") and court decisions as of
the date hereof. The provisions of the Code and the Treasury Regulations, IRS
administrative pronouncements and case law upon which this opinion is based
could be changed at any time, perhaps with retroactive effect. In addition, some
of the issues under existing law that could significantly affect our opinion
have not yet been authoritatively addressed by the IRS or the courts, and our
opinion is not binding on the IRS or the courts. Hence, there can be no
assurance that the IRS will not challenge, or that the courts will agree, with
our conclusions.
Based upon, and subject to, the foregoing and the next paragraph below,
we are of the opinion that, as of the date hereof:
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United Dominion Realty Trust, Inc.
September 8 2003
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(i) The Company has been 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 beginning with the taxable year ended
December 31, 1999 through its taxable year ended December 31, 2002, and
its current organization and current and proposed method of operation
will enable it to continue to meet the requirements for qualification
and taxation as a REIT for the taxable year 2003 and thereafter; and
(ii) We have reviewed the statements included or incorporated by reference
in the Prospectus Supplement under the heading "Federal Income Tax
Considerations," and in the Prospectus under the heading "Federal
Income Tax Considerations" (as modified by the Prospectus Supplement),
and insofar as such statements pertain to matters of law or legal
conclusions, they are correct in all material respects.
We undertake no obligation to update this opinion, or to ascertain
after the date hereof whether circumstances occurring after such date may affect
the conclusions set forth herein. We express no opinion as to matters governed
by any laws other than the Code, the Treasury Regulations, published
administrative announcements and rulings of the IRS, and court decisions.
This opinion is furnished to you solely for use in connection with the
Prospectus Supplement. We hereby consent to the filing of this opinion as an
exhibit to the Company's filings with the SEC in connection with the offering of
the Common Stock. We also consent to the reference to our firm name in the
Prospectus Supplement under the caption "Federal Income Tax Considerations" and
"Legal Matters." In giving this consent, we do not admit that we come within the
category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the SEC thereunder, nor do we thereby admit
that we are experts with respect to any part of the Registration Statement
within the meaning of the term "experts" as used in the Securities Act or the
rules and regulations of the SEC promulgated thereunder.
Very truly yours,
/s/ MORRISON & FOERSTER LLP
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