Contact: Warren Troupe , Tom Fileti , or Yaacov Gross
Morrison & Foerster’s Real Estate Investment Trust practice is a collaborative, integrated, multi-office practice involving
corporate, finance, investment management, real estate, tax and other attorneys throughout the domestic and international
offices of the firm.
Attorneys in the REIT practice area are actively involved, as both general and special counsel, in advising REITs, and REIT
sponsors, contributors, investors, investment advisers, underwriters and institutional lenders on all aspects of REIT activity.
They have been active and influential in NAREIT and other industry organizations, and in legislative affairs affecting the
REIT industry.
Formation. Representing and advising clients in the organization and formation of REITs and REIT affiliates, including:
- Publicly traded REITs,
- Private REITs, both single and multiple sponsor,
- Non-U.S. REITs, particularly “J-REITs”,
- UPREITs and “Down REITs”, and
- Consolidation of existing partnerships and properties into a REIT.
Corporate Finance/Mergers and Acquisitions.
- Initial and subsequent public offerings by REITs, both in U.S. and foreign markets;
- Debt financing transactions, including public offerings, 144A offerings and private loan financings (for both REITs as borrower,
and institutional lenders as lender);
- Guidance to public REITs in connection with their on-going SEC reporting and other requirements (including Sarbanes-Oxley
compliance);
- Private placements of shares and OP units in connection with real estate transactions and cash purchases by exchange funds
and other investors; and
- Mergers and acquisitions, including REIT/REIT and REIT/non-REIT combinations, and taxable and tax-free transactions.
The firm is ranked by The American Lawyer as one of the leading U.S. firms as equity issuer’s counsel.
Real Estate. Real estate transactions, including:
- Acquisitions and dispositions of real property assets, in single asset and portfolio transactions. We are expert in such
tax-efficient structures as like-kind exchanges (multi-property and multi-party exchanges as well as non-simultaneous, build-to-suit
and reverse exchanges), the implementation of like-kind exchange programs and transactions structured to minimize property
taxes and transfer taxes.
- Real estate transactions are increasingly international in scope, and we regularly represent REITs in the development and
implementation of tax efficient cross-border strategies.
- Representation of mortgage REITs in senior and mezzanine loan transactions, including transactions involving non-U.S. borrowers
or collateral.
- Joint ventures between REITs and taxable, tax-exempt and foreign investors through partnerships, limited liability companies
and privately-held REITs.
- “Roll-ups” and similar transactions involving the contribution of real estate projects and real estate partnership interests
into REITS or their operating partnerships.
- Negotiation of secured and unsecured financing arrangements for REITs and REIT assets, including lines of credit, construction
and development loans, permanent financing, acquisition financing, pooled transactions and other financing structures.
- Real estate development work, including securing land use entitlements and related permits for development and construction
of major commercial and multi-family residential projects, negotiating development agreements, securing public financing assistance
and negotiating design and construction contracts.
- Real property leasing representation, including traditional occupancy leases, ground leases, build-to-suit and credit tenant
lease transactions.
Tax. Morrison & Foerster’s tax lawyers have substantial experience and expertise in the wide variety of issues relating to REITs
and are involved in all aspects of REIT transactions, including formation and conversion transactions, OP unit transactions,
corporate finance, executive compensation, mergers and acquisitions, and real estate transactions. The tax lawyers in the
REIT practice area also advise REITs and other clients on tax-specific matters, including the following:
- Ongoing advice regarding satisfaction of the REIT compliance requirements, such as the income and assets tests and the “five
or fewer” test.
- Methods to minimize cash distributions of REIT income and gains.
- Restructurings and modifications of operational tax compliance procedures in connection with pending and recently-enacted
tax legislation.
- Consequences of and status updates regarding proposed tax legislation affecting REITs, such as proposals to change depreciable
lives of property, to institute a “closely-held” REIT test and to eliminate preferred umbrella partnership units as “good
property” for purposes of the investment company limitations under Sections 351 and 721 of the Internal Revenue Code.
- State and local tax matters, including state conformity with the enacted federal tax legislation, such as the REIT Modernization
Act, state and local income and franchise taxes applicable to REITs, and property tax matters, and structuring to minimize
state and local taxes, including real property transfer taxes.
Investment Management. Representation of institutional investors and investment advisers in connection with REITs, including:
- Matters of fiduciary responsibility, prudence in the performance of investment management activities.
- Consideration of potential conflicts of interest in transactions involving institutional investors, investment managers, and
other parties.
- Securities and ERISA aspects of offering REIT shares to tax-exempt investors.
- Investment Company Act compliance.
- Investment Advisers Act compliance.
