Exhibit 8.1
July 18, 2005 41193.00001
Acadia Realty Trust
20 Soundview Marketplace
Port Washington, NY 11050
Ladies and Gentlemen:
We have acted as counsel to Acadia Realty Trust, a Maryland real estate
investment trust (the "Company"), in connection with the registration of 250,000
common shares of beneficial interest of the Company, $0.001 par value (the
"Shares"). The Shares may be offered for sale by the Selling Shareholder
pursuant to a registration statement (the "Registration Statement") to be filed
by the Company with the Securities and Exchange Commission on Form S-3. In such
capacity, you have requested our opinion as to certain federal income tax
matters in connection with the Registration Statement.
As of the date hereof, the Company owns 98% of Acadia Realty Limited
Partnership, a Delaware limited partnership (the "Operating Partnership"), which
in turn owns equity interests in existing shopping centers (and certain other
real property) and associated personal property (the "Properties"). The
Operating Partnership owns some of the Properties directly and owns the
remaining Properties through limited liability companies or subsidiary
partnerships (collectively, the "Subsidiary Partnerships").
In connection with the opinions rendered below, we have examined the following:
I. the Declaration of Trust of the Company, as amended, as filed with the
Secretary of State of Maryland;
II. the Company's Amended Bylaws;
III. the Registration Statement, including the prospectus contained as part
of the Registration Statement (the "Prospectus");
IV. the Amended and Restated Agreement of Limited Partnership of the
Operating Partnership dated as of March 22, 1999 (the "Operating
Partnership Agreement"), among the Company, as general partner and
several other limited partners;
V. the amendments to the Operating Partnership Agreement dated,
respectively, as of November 15, 1999, November 18, 1999, May 1, 2003
and January 27, 2004;
VI. the partnership agreements or operating agreements of the Subsidiary
Partnerships; and
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July 18, 2005
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VII. such other documents as we have deemed necessary or appropriate for
purposes of this opinion.
In connection with the opinions rendered below, we have assumed generally that:
I. each of the documents referred to above has been duly authorized,
executed, and delivered; is authentic, if an original, or is accurate,
if a copy; and has not been amended;
II. during each taxable year, including its short taxable year ending
December 31, 1993, the Company has operated and will operate in such a
manner that will make the representations contained in the
Representation Letter, dated as of the date hereof and executed by
officers of the Company (the "Representation Letter"), true for such
years;
III. the Company will not make any amendments to its organizational
documents or the Operating Partnership Agreement, after the date of
this opinion, that would affect the Company's qualification as a real
estate investment trust (a "REIT") for any taxable year; and
IV. neither the Operating Partnership nor any Subsidiary Partnership will
make an election to be taxed as an association taxable as a corporation
or other than as a partnership pursuant to Treasury Regulation Section
301.7701-3(c).
In connection with the opinions rendered below, we also have relied upon the
correctness of the representations contained in the Representation Letter.
For purposes of our opinions, we made such factual and legal inquiries,
including examination of the documents set forth above, as we have deemed
necessary or appropriate for purposes of our opinion. For purposes of rendering
our opinion, however, we have not made an independent investigation of the facts
contained in the documents and assumptions set forth above, the representations
set forth in the Representation Letter, or the Prospectus. We consequently have
relied upon the representations in the Representation Letter that the
information presented in such documents or otherwise furnished to us is accurate
and complete in all material respects relevant to our opinion.
We have acted as counsel to the Company since August 12, 1998. Accordingly, the
first full taxable year for which we have acted as counsel to the Company is the
taxable year ending December 31, 1999, and our opinion rendered below does not
address any period before January 1, 1999. We have assumed that, for periods
prior to January 1, 1999, the Company qualified to be taxed as a REIT pursuant
to sections 856 through 860 of the Code and that the Operating Partnership and
the Subsidiary Partnerships were properly
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July 18, 2005
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treated for federal income tax purposes as partnerships and not as associations
taxable as corporations or as publicly traded partnerships.
In addition, to the extent that any of the representations provided to us in the
Representation Letter are with respect to matters set forth in the Internal
Revenue Code of 1986, as amended (the "Code"), or the Treasury regulations
thereunder (the "Regulations"), we have reviewed with the individual making such
representation the relevant portion of the Code and the applicable Regulations
and are reasonably satisfied that such individual understands such provisions
and is capable of making such representations.
Based on the documents and assumptions set forth above, the representations set
forth in the Representation Letter, and the discussion in the Prospectus under
the caption "Federal Income Tax Considerations" (which is incorporated herein by
reference), we are of the opinion that:
(A) commencing with the Company's taxable year ending December 31,
1999, the Company qualified and will qualify to be taxed as a
REIT pursuant to sections 856 through 860 of the Code, and the
Company's proposed method of operation will enable it to
continue to meet the requirements for qualification and
taxation as a REIT under the Code;
(B) the descriptions of the law and the legal conclusions
contained in the Prospectus under the caption "Federal Income
Tax Considerations" are correct in all material respects, and
the discussion contained therein fairly summarizes the federal
tax considerations that are material to a holder of the Common
Shares; and
(C) the Operating Partnership and the Subsidiary Partnerships will
be treated for federal income tax purposes as partnerships and
not as associations taxable as corporations or as publicly
traded partnerships.
We assume no obligation to advise you of any changes in our opinion subsequent
to the delivery of this opinion letter. The Company's qualification and taxation
as a REIT depends upon the Company's ability to meet on a continuing basis,
through actual annual operating and other results, the various requirements
under the Code with regard to, among other things, the sources of its gross
income, the composition of its assets, the level of its distributions to
stockholders, and the diversity of its stock ownership. We will not review on a
continuing basis the Company's compliance with the documents or assumptions set
forth above, or the representations set forth in the Representation Letter.
Accordingly, no assurance can be given that the actual results of the Company's
operations the sources of its income, the nature of its assets, the level of the
Company's distributions to its stockholders and the diversity of the Company's
stock ownership for
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any given taxable year will satisfy the requirements for qualification and
taxation as a REIT.
The foregoing opinions are based on current provisions of the Code and the
Regulations, published administrative interpretations thereof, and published
court decisions. The Internal Revenue Service has not issued Regulations or
administrative interpretations with respect to various provisions of the Code
relating to REIT qualification. No assurance can be given that the law will not
change in a way that will prevent the Company from qualifying as a REIT, or the
Operating Partnership or the Subsidiary Partnerships from being classified as
partnerships for federal income tax purposes.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. We also consent to the references to Paul, Hastings,
Janofsky & Walker LLP under the captions "Federal Income Tax Considerations" and
"Legal Matters" in the Prospectus.
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 or locality. We
undertake no obligation to update the opinions expressed herein after the date
of this letter.
Very truly yours,
/s/ PAUL, HASTINGS, JANOFSKY & WALKER LLP