Real Estate Investment Trusts (REITs)


Baker Botts lawyers have extensive experience in the creation and operation of both publicly registered and privately held REITs. Our experience in utility REITs is unsurpassed. We advise on the full range of services relating to REITs, including mergers and acquisitions, initial public offerings and other capital raising transactions, formation transactions, structuring and other corporate transactional matters, including the following:

  • structuring considerations, including UpREIT structures, DownREIT structures and structures involving multiple classes of equity, the type or types of entities utilized and the jurisdiction of formation
  • the offering and sale of REIT interests, including the preparation of registration statements, private placement memoranda and related materials
  • disclosure issues specific to REITs, and compliance with U.S. federal and state securities laws and non-U.S. laws and the Investment Company Act of 1940
  • tax issues incident to the formation and operation of REITs, including utility REITs with their novel tax issues
  • issues related to the taxation of the REIT and its activities, such as compliance with applicable REIT income and assets tests, REIT distribution requirements and REIT-prohibited transaction/dealer property issues
  • issues relating to the taxation of various types of REIT investors, including issues with respect to tax-exempt investors under the pension-held REIT rules and issues with respect to foreign investors under the FIRPTA rules, domestically controlled REIT rules, and Section 892 rules, and under applicable tax treaty provisions
  • tax due diligence issues related to property acquisitions by REITs such as lease and activity review in order to ensure compliance with the REIT income and asset tests
  • tax structuring issues arising in connection with mergers with, acquisitions of, and/or liquidations of, REITs
  • tax structuring issues unique to REITs that invest in hotels or mortgage loans
  • preparation of organizational and transfer provisions needed to ensure compliance with the organizational and ownership requirements for REITs under the tax rules and, where applicable, with the pension held and domestically-controlled REIT tax rules
  • regulatory issues arising under the U.S. Employee Retirement Income Security Act of 1974