Exhibit 8.1
NIXON PEABODY LLP
Attorneys at Law
Clinton Square
Post Office Box 1051
Rochester, New York 14603-1051
(716) 263-1000
Fax: (716) 263-1600
August 31, 2000
Home Properties of New York, Inc.
850 Clinton Square
Rochester, New York 14604
Gentlemen:
We have acted as counsel to Home Properties of New York, Inc. ("Home
Properties") in connection with the Registration Statement on Form S-3 filed
with the Securities and Exchange Commission today (the "Registration
Statement"). This opinion relates to the Company's qualification for federal
income tax purposes as a real estate investment trust ("REIT") under the
Internal Revenue Code of 1986, as amended (the "Code"), for taxable years
beginning with the taxable year ending December 31, 1994 and to the accuracy of
the "FEDERAL INCOME TAX CONSIDERATIONS" section of the Registration Statement.
All capitalized terms used but not defined herein shall have the meaning
assigned to them in the Registration Statement.
For the purpose of rendering our opinion, we have examined and are relying
upon the truth and accuracy, at all relevant times, of the statements,
covenants, representations and warranties contained in the following documents:
1. The Articles of Amendment and Restatement of the Articles of
Incorporation of Home Properties, as amended, and the Articles of Incorporation
of the Management Companies.
2. The By-Laws of Home Properties, as amended, and the By-Laws of the
Management Companies.
3. The Certificate of Limited Partnership and the Second Amended and
Restated Agreement of Limited Partnership of Home Properties of New York, L.P.,
as amended (the "Operating Partnership").
4. The Registration Statement.
5. Representations made to us by officers of Home Properties, the
Operating Partnership and the Management Companies in certificates (the
"Certificates") delivered to us in connection with the Registration Statement
or this opinion, which we have no reason to believe contain any material
inaccuracies.
In connection with rendering this opinion, we have assumed and are relying
upon, without any independent investigation or review thereof, the following:
(i) the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as copies,
and authenticity of the originals of such documents; (ii) that neither Home
Properties, the Operating Partnership nor the Management Companies will make
any amendments to its organizational documents after the date of this opinion
that would adversely affect Home Properties' qualification as a REIT for any
taxable year (iii) that no actions will be taken by Home Properties, the
Operating Partnership or the Management Companies after the date hereof that
would have the effect of altering the facts upon which the opinions set forth
below are based; and (iv) that all documents, certificates, representations,
warranties and covenants on which we have relied in rendering the opinions set
forth below and that were given or dated earlier than the date of this opinion
continue to remain accurate, insofar as relevant to the opinions set forth
herein, from such earlier date through and including the date of this letter.
We have neither independently investigated nor verified such representations,
and we assume that such representations are true, correct and complete. We
assume that Home Properties has been and will operated in accordance with
applicable laws and the terms and that the descriptions of Home Properties, the
Operating Partnership and the Management Companies and their activities,
operations and governance set forth in the Registration Statement are true and
correct.
Based on our examination of the foregoing items, subject to the
assumptions, exceptions, limitations and qualifications set forth herein, we
are of the opinion that:
1. Commencing with Home Properties' taxable year ending December 31,
1994, Home Properties was organized in conformity with the requirements for
qualification as a REIT under the Internal Revenue of 1986, as amended (the
"Code"), its method of operation has enabled it to meet the requirements for
qualification and taxation as a REIT under the Code, and the proposed method of
operation described in the Prospectus included in the Registration Statement
will enable Home Properties to satisfy the requirements for such qualification
under the Code for subsequent taxable years.
2. Home Properties is properly treated as a partner for federal income
tax purposes in the Operating Partnership, and the Operating Partnership is
properly classified as a partnership for federal income tax purposes and not as
an association taxable as a corporation.
3. The statements in the Prospectus included in the Registration
Statement 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
respect and fairly summarize the federal income tax considerations that are
likely to be material to holders of common stock who are United States citizens
or residents or domestic corporations and who are not subject to special
treatment under the tax laws.
Our opinions expressed herein are based upon our interpretation of the
current provisions of the Code and existing judicial decisions, administrative
regulations and published rulings and procedures (including the practices and
policies in issuing private letter rulings, which are not binding on the
Internal Revenue Service except with respect to the taxpayer who receives such
ruling). Our opinions are not binding upon the Internal Revenue Service or
courts and there is no assurance that the Internal Revenue Service will not
successfully challenge the conclusions set forth herein. The Internal Revenue
Service has not yet issued regulations or administrative interpretations with
respect to various provisions of the Code relating to REIT qualification.
Consequently, no assurance can be given that future legislative, judicial or
administrative changes, on either a prospective or retroactive basis, would not
adversely affect the accuracy of the conclusions stated herein. We undertake
no obligation to advise you of changes in law which may occur after the date
hereof.
Our opinions are limited to the federal income tax matters and the federal
law of the United States of America addressed herein, and no other opinions are
rendered with respect to any other matter not specifically set forth in the
foregoing opinion and we assume no responsibility as to the applicability
thereto, or the effect thereon, of the laws of any other jurisdiction.
Home Properties' qualification and taxation as a real estate investment
trust depend upon Home Properties' ability to satisfy, through actual operating
results, the applicable asset composition, source of income, shareholder
diversification, distribution, record keeping and other requirements of the
Code necessary to qualify and be taxed as a REIT. The foregoing opinions are
based upon the method of operation as described in the Registration Statement
and facts stated in the Certificates and other documents described herein. We
undertake no obligation to review at any time in the future whether Home
Properties has fulfilled the requirements listed in this paragraph and,
consequently, no assurance can be given that the actual results of Home
Properties' operations for any taxable year will satisfy the requirements of
the Code necessary to qualify or be taxed as a REIT.
In the event any one of the statements, representations, warranties or
assumptions we have relied upon to issue this opinion is incorrect in a
material respect, our opinions might be adversely affected and may not be
relied upon.
We hereby consent to the reference to us under the captions "FEDERAL
INCOME TAX CONSIDERATIONS" and "LEGAL MATTERS" in the Registration Statement,
and to the filing of this opinion as an Exhibit to the Registration Statement,
without implying or admitting that we are experts within the meaning of the
Securities Act of 1933, as amended, with respect to any part of the
Registration Statement.
This letter is furnished to Home Properties, the Operating Partnership and
the Management Companies and is solely for your benefit. This letter may not
be relied upon by any other person or for any other purpose and may not be
referred to or quoted from without our prior written consent.
Very truly yours,
/s/ Nixon Peabody LLP
