EXHIBIT 8.01
MORRISON & FOERSTER LLP
SAN FRANCISCO ATTORNEYS AT LAW NEW YORK
LOS ANGELES WASHINGTON, D.C.
DENVER 425 MARKET STREET NORTHERN VIRGINIA
PALO ALTO SAN FRANCISCO, CALIFORNIA 94105-2482 LONDON
WALNUT CREEK TELEPHONE (415) 268-7000 BRUSSELS
SACRAMENTO TELEFACSIMILE (415) 268-7522 BEIJING
CENTURY CITY HONG KONG
ORANGE COUNTY SINGAPORE
SAN DIEGO TOKYO
June 17, 2004
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 medium-term notes having an aggregate initial offering price of up to
U.S. $750,000,000 or the equivalent thereof in one or more foreign currencies
(the "Notes"), pursuant to that certain Distribution Agreement, dated June 17,
2004 (the "Distribution Agreement), by the Company on the one hand and J.P.
Morgan Securities Inc., Banc of America Securities LLC, Goldman, Sachs & Co.,
McDonald Investments, Inc., Citigroup Capital Markets Inc., and Wachovia Capital
Markets, LLC on the other hand. The Notes are the subject of a registration
statement (the "Registration Statement") on Form S-3 (File No. 333-115696) filed
by the Company with the Securities Exchange Commission ("SEC") under the
Securities Act of 1933 (the "Securities Act"), a prospectus contained in the
Registration Statement (the "Prospectus"), and a supplement to the Prospectus
(the "Prospectus Supplement") dated June 17, 2004. Capitalized terms not defined
herein shall have the meanings ascribed to them in the certificate (or
incorporated therein by reference), dated June 17, 2004 (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. Although you (and each of your employees,
representatives, or other agents) may disclose to any and all persons, without
limitation of any kind, the federal tax treatment and federal tax structure of
the Company and all materials of any kind that were provided to you by us
relating to such tax treatment and tax structure, this opinion is intended
solely for the benefit of the Company. You may not authorize any other person or
entity to rely on this opinion, or otherwise make this opinion available for the
benefit of any other person or entity, 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 and the Prospectus
Supplement, (iii) the
MORRISON & FOERSTER LLP
United Dominion Realty Trust, Inc.
June 17, 2004
Page Two
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 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 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 1999 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.
MORRISON & FOERSTER LLP
United Dominion Realty Trust, Inc.
June 17, 2004
Page Three
Based upon, and subject to, the foregoing and the next paragraph below,
we are of the opinion that, as of the date hereof:
(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, 2000 through its taxable year ended December 31, 2003, 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 2004 and thereafter; and
(ii) We have reviewed the statements included or incorporated by reference
in the Prospectus Supplement under the heading "U.S. Federal Income Tax
Considerations," and in the Prospectus under the heading "U.S. 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 Notes. We also consent to the reference to our firm name in the Prospectus
Supplement under the caption "U.S. 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 Prospectus Supplement 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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