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EXHIBIT 8.1
[MORRISON & FOERSTER LLP LETTERHEAD]
November 30, 2000
Spieker Properties, Inc.
2180 Sand Hill Road, Suite 200
Menlo Park, California 94025
Ladies and Gentlemen:
We have acted as special tax counsel to Spieker Properties, Inc., a
Maryland corporation (the "Company") in connection with the offer and sale from
time to time by the holders of up to 763,002 shares (the "Shares") of common
stock par value $.0001 per share, that may be issued by the Company to the
holders of up to 763,002 units of limited partnership interest (the "Units") in
Spieker Properties, L.P., a California limited partnership, if and to the extent
that such holders tender such Units for exchange into the Shares. The Shares are
the subject of a Registration Statement (the "Registration Statement") to be
filed by the Company on Form S-3 with the SEC on December 1, 2000, under the
Act. Capitalized terms not defined herein shall have the meanings ascribed to
them in the certificate (or incorporated therein by reference), dated November
30, 2000 (the "Certificate"), delivered to Morrison & Foerster LLP which
provides certain representations of fact by the Company relevant to this
opinion.
You have requested our opinion as to certain federal income tax matters
regarding the Company. 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 special tax 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 (iii)
such other documents 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.
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MORRISON & FOERSTER LLP
Spieker Properties, Inc.
November 30, 2000
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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) the
Company is operated and will continue to be operated in the manner described in
the Certificate, (ii) the facts contained in the Registration Statement are true
and complete in all material respects, and (iii) all representations of fact
contained in the Certificate are true and complete in all material respects. 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, qualification and taxation of the Company as a REIT for federal
income tax purposes depends upon the Company's ability to satisfy or maintain on
a continuing basis certain distribution levels, diversity of stock ownership,
and the various qualification tests imposed by the Code. To the extent that the
facts differ from those represented to us 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,
the Treasury Regulations promulgated thereunder, administrative pronouncements
of the 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, commencing with the Company's
taxable year ending December 31, 1993 through its taxable year ending December
31, 1999, the Company has been organized and operated in conformity with the
requirements for qualification as a REIT under the Code, and if it continues to
be organized and operated after December 31, 1999 in the same manner as it has
prior to that date, it will continue to so qualify.
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
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MORRISON & FOERSTER LLP
Spieker Properties, Inc.
November 30, 2000
Page 3
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 case law.
We hereby consent to the reference to our firm name and this opinion in
the Registration Statement and the prospectus contained therein. In giving such
consent, however, we do not admit and we hereby disclaim that we come within the
category of persons whose consent is required under Section 7 of the Act or the
rules and regulations of the SEC promulgated 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 Act or the rules and
regulations of the SEC promulgated thereunder.
Very truly yours,
/s/ MORRISON & FOERSTER LLP
