Innovative Industrial Properties Inc 8-K, filed Nov 9, 2026
Innovative Industrial Properties Inc (IIPR)
About this 8-K
Innovative Industrial Properties Inc filed this 8-K on November 9, 2026.
Items reported
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported):
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telephone number, including area code: (
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities Registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 8.01 Other Events.
On November 9, 2026, Innovative Industrial Properties, Inc. (the “Company”) and IIP Operating Partnership, LP entered into amendments (collectively, the “Amendments”) to each of the Company's existing equity distribution agreements with BTIG, LLC, Piper Sandler & Co. and Roth Capital Partners, LLC (or their respective affiliates or agents), dated May 24, 2024, Stifel, Nicolaus & Company, Incorporated and A.G.P./Alliance Global Partners (or their respective affiliates or agents), dated May 13, 2025, and Huntington Securities, Inc. (or its affiliates or agents), dated August 31, 2026, solely to add the Company's 9.25% Series B Cumulative Redeemable Preferred Stock, par value $0.001 per share (“Series B Preferred Stock”), together with conforming changes, to the Company's at-the-market offering program for the offer and sale of shares having an aggregate offering price of up to $500,000,000 of the Company’s common stock, par value $0.001 per share (“common stock”), and 9.00% Series A Cumulative Redeemable Preferred Stock, par value $0.001 per share (“Series A Preferred Stock”). The Company refers to its common stock, Series A Preferred Stock, and Series B Preferred Stock, collectively, as the “Shares.”
The Shares will be offered pursuant to the Company’s registration statement on Form S-3 (Registration No. 333-285148) and a prospectus supplement dated November 9, 2026 (the “ATM Prospectus Supplement”). As of the date of this report, Shares having an aggregate offering price of approximately $336.9 million remain available for offer and sale pursuant to the ATM Prospectus Supplement. This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy the Shares nor shall there be any sale of the Shares in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state.
The foregoing description does not purport to be complete and is qualified in its entirety by reference to the form of Amendment, which is filed as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
| Exhibit | Description of Exhibit | |
| 1.1 | Form of Amendment to Equity Distribution Agreement. | |
| 5.1 | Opinion of Foley & Lardner LLP regarding legality of the Shares. | |
| 8.1 | Opinion of Foley & Lardner LLP regarding certain tax matters. | |
| 23.1 | Consent of Foley & Lardner LLP (included in Exhibit 5.1). | |
| 23.2 | Consent of Foley & Lardner LLP (included in Exhibit 8.1). | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Date: November 9, 2026 | INNOVATIVE INDUSTRIAL PROPERTIES, INC. | |
| By: | /s/ David Smith | |
| Name: | David Smith | |
| Title: | Chief Financial Officer | |
Exhibit 1.1
INNOVATIVE INDUSTRIAL PROPERTIES, INC.
COMMON STOCK
(par value $0.001 per share)
9.00% SERIES A CUMULATIVE REDEEMABLE PREFERRED STOCK
(par value $0.001 per share)
9.25% SERIES B CUMULATIVE REDEEMABLE PREFERRED STOCK
(par value $0.001 per share)
AMENDMENT NO. [[1]/[2]] TO THE
EQUITY DISTRIBUTION AGREEMENT
November 9, 2026
[•]
[•]
[•]
Ladies and Gentlemen:
Reference is made to the Equity Distribution Agreement, dated [[May 24, 2024]/[May 13, 2025]/[August 31, 2026]] ([as amended,] the “Agreement”), by and among Innovative Industrial Properties, Inc., a Maryland corporation (the “Company”), IIP Operating Partnership, LP, a Delaware limited partnership (the “Operating Partnership”) and [•] (“Agent”). Terms used herein but not otherwise defined are used herein as defined in the Agreement. The parties, intending to be legally bound, hereby amend the Agreement as follows (this “Amendment”):
1. The first paragraph of Section 1 of the Agreement is hereby amended and restated as follows:
Issuance and Sale of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell in the manner contemplated by this Agreement up to that number of shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), shares of the Company’s 9.00% Series A Cumulative Redeemable Preferred Stock, par value $0.001 per share (the “Series A Preferred Stock”) and/or shares of the Company’s 9.25% Series B Cumulative Redeemable Preferred Stock, par value $0.001 per share (the “Series B Preferred Stock,” and together with the Common Stock and Series A Preferred Stock, the “Shares”), having an aggregate offering price of $500,000,000; provided, however, that in no event shall the Company issue or sell to or through Agent or the Forward Seller, as applicable, such number of Shares that would (a) cause the Company not to satisfy the eligibility requirements for use of Form S-3 (including, if and so long as applicable, General Instruction I.B.6. of Form S-3), (b) exceed the number or amount of shares of Common Stock, shares of Series A Preferred Stock or shares of Series B Preferred Stock then available for offer and sale under the currently effective Registration Statement (as defined below) pursuant to which the offering hereunder and under any Terms Agreement (as defined below) is being made or (c) exceed the number of authorized but unissued shares of the Company’s Common Stock, the number of authorized but unissued shares of the Company’s Series A Preferred Stock or the number of authorized but unissued shares of the Company’s Series B Preferred Stock (the lesser of (a), (b) and (c), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the Parties acknowledge and agree that compliance with the limitations set forth in this Section 1 on the Maximum Amount of Shares that may be issued and sold under this Agreement, the Master Forward Confirmation (as defined below) and any related “supplemental confirmation” thereto and any Terms Agreement (as defined below) shall be the sole responsibility of the Company, and that neither Agent, the Forward Seller nor the Forward Purchaser shall have any obligation in connection with such compliance. The Company agrees that whenever it determines to sell Shares directly to Agent, as principal, it will enter into a separate agreement (each, a “Terms Agreement”) in a form to be agreed upon by the Company and Agent relating to such sale in accordance with Section 2(e) of this Agreement (each such transaction being referred to as a “Principal Transaction”). The issuance and sale of Shares to or through Agent and/or Forward Seller will be effected pursuant to the Registration Statement (as defined below) filed by the Company and which became effective upon filing with the U.S. Securities and Exchange Commission (the “Commission”) under Rule 462(e) under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (collectively, the “Securities Act”).
2. The definition of “Issuance Shares” in Section 1 of the Agreement is hereby amended and restated as follows:
“Issuance Shares” means all shares of Common Stock, Series A Preferred Stock and Series B Preferred Stock issued or issuable pursuant to an Issuance that has occurred or may occur in accordance with the terms and conditions of this Agreement. Where the context requires, the term “Issuance Shares” as used herein, shall include the definition of the same under the Alternative Distribution Agreements.
3. Section 3(e) of the Agreement is hereby amended and restated as follows:
(e) The Shares may be offered and sold by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 under the Securities Act, including without limitation sales made directly on the Exchange, on any other existing trading market for the Common Stock or to or through a market maker, or subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), by any other method permitted by law, including but not limited to, privately negotiated transactions, which may include block trades. Notwithstanding anything to the contrary herein, Agent shall not sell shares of the Series A Preferred Stock or shares of the Series B Preferred Stock at a price higher than the Preferred Stock Maximum Price (as defined below). For purposes hereof, the “Preferred Stock Maximum Price” shall mean (1) with respect to the Series A Preferred Stock, $25.00 per share, plus any accrued and unpaid dividends per share to, but excluding, the date of sale; and (2) with respect to the Series B Preferred Stock, (a) through October 19, 2030, the product of (i) $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale and (ii) the sum of (A) 1.0 and (B) (x) the number of complete years until October 19, 2031 remaining at the date of sale multiplied by (y) 0.0025; and (b) on October 20, 2030 and thereafter, $25.00 plus any accrued and unpaid dividends per share to, but excluding, the date of sale.
4. Section 6(h) of the Agreement is hereby amended and restated as follows:
(h) No Material Adverse Change in Business. Since the respective dates as of which information is given in the Registration Statement, the Prospectus and any issuer free writing prospectus except as otherwise stated therein, (i) there has been no material adverse change in or affecting the business affairs, business, earnings, condition (financial or otherwise), results of operations, stockholders’ equity, properties, management or prospects of the Company, the Operating Partnership and its subsidiaries considered as one enterprise (including all of the properties of the Company and its subsidiaries), whether or not arising in the ordinary course of business (a “Material Adverse Effect”), (ii) there have been no transactions entered into by the Company or any of its subsidiaries, other than those in the ordinary course of business, which are material with respect to such entities considered as one enterprise or incurred any liability or obligation, direct or contingent, that is material to such entities considered as one enterprise, and (iii) except for regular monthly or quarterly dividends on the Common Stock, Series A Preferred Stock and Series B Preferred Stock, in amounts per share that are consistent with past practice, there has been no dividend or distribution of any kind declared, paid or made by the Company or any of its subsidiaries on any class of the capital stock or other equity interest of such entities.
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5. Section 6(o) of the Agreement is hereby amended and restated as follows:
(o) Authorization and Description of Shares. The Shares and the shares of Common Stock to be issued in connection with any Forward Contract have been duly authorized for issuance and sale pursuant to this Agreement and, in the case of any Forward, the Forward Contract and, when issued and delivered by the Company pursuant to this Agreement, and, in the case of any Forward, the related Forward Contract, against payment of the consideration set forth herein or therein (which may include net share settlement), will be validly issued, fully paid and non-assessable, will conform to the description thereof contained in the Registration Statement and the Prospectus, will be issued in compliance with federal and state securities laws and will not be issued in violation of any preemptive right, resale right, right of first refusal or similar right. The Common Stock, the Series A Preferred Stock and the Series B Preferred Stock conform in all material respects to all statements relating thereto contained in the Registration Statement, the Prospectus and any issuer free writing prospectus and such description conforms in all material respects to the rights set forth in the instruments defining the same. No holder of Common Stock, Series A Preferred Stock or Series B Preferred Stock will be subject to personal liability solely by reason of being such a holder. The Articles Supplementary to the Company’s charter setting forth the terms of each of the Series A Preferred Stock and the Series B Preferred Stock (the “Articles Supplementary”), have been or will be, prior to the date hereof, duly authorized, executed and filed by the Company with the State Department of Assessments and Taxation of the State of Maryland (the “SDAT”). If the Shares or the shares of Common Stock to be issued in connection with any Forward Contract are certificated, the certificates to be used to evidence title to the Shares and the shares of Common Stock to be issued in connection with any Forward Contract, will be in substantially the form filed as an exhibit to the Registration Statement.
6. Section 6(p) of the Agreement is hereby amended and restated as follows:
(p) Authorization of Common Stock Upon Conversion. The shares issuable upon conversion of each of the Series A Preferred Stock and the Series B Preferred Stock (collectively, the “Conversion Shares”) have been duly authorized and, when issued in accordance with the terms of the respective Articles Supplementary, will be validly issued and fully paid and non-assessable; and the issuance of the Conversion Shares will not be subject to the preemptive, resale rights, rights of first refusal or other similar rights of any securityholder of the Company. The Conversion Shares conform in all material respects to all statements relating thereto contained in the Registration Statement and the Prospectus and such description conforms in all material respects to the rights set forth in the instruments defining the same. No holder of the Conversion Shares will be subject to personal liability by reason of being such a holder. The Company has duly and validly reserved such Conversion Shares for issuance upon conversion of the Series A Preferred Stock or Series B Preferred Stock. If the Conversion Shares are certificated, the certificates to be used to evidence title to the Conversion Shares will be in substantially the form filed as an exhibit to the Registration Statement.
7. Section 6(s) of the Agreement is hereby amended and restated as follows:
(s) Absence of Conflicts. The execution, delivery and performance of this Agreement and the Master Forward Confirmation, the execution, delivery and performance of each “Supplemental Confirmation” under the Master Forward Confirmation, and in each case the consummation of the transactions contemplated therein and herein and in the Registration Statement and the Prospectus (including the issuance and sale of the Shares from time to time pursuant to this Agreement or the Alternative Distribution Agreements, the issuance of the shares of Common Stock pursuant to any Forward Contract, and any issuance of the Conversion Shares upon conversion of the Series A Preferred Stock or the Series B Preferred Stock, as applicable, and its use of the net proceeds from the issuance of the Shares and such shares of Common Stock as described in the Prospectus under the caption “Use of Proceeds”) and the compliance by the Company and the Operating Partnership with their respective obligations hereunder have been duly authorized by all necessary corporate or other action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not, singly or in the aggregate, result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, bylaws or similar organizational documents of the Company or any of its subsidiaries, or, except as disclosed in the Registration Statement, and the Prospectus, any applicable law, statute, rule, regulation, judgment, order, writ or decree of any Governmental Entity. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
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8. Section 6(w) of the Agreement is hereby amended and restated as follows:
(w) Accuracy of Descriptions. The statements made in the Registration Statement and the Prospectus under the captions “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Description of Series B Preferred Stock” insofar as it purports to constitute a summary of the terms of the Common Stock, the Series A Preferred Stock and Series B Preferred Stock, and under the captions “Risk Factors – Risks Related to Regulation,” “Description of Capital Stock,” “Description of Series A Preferred Stock,” “Description of Series B Preferred Stock,” “Certain Provisions of Maryland Law and our Charter and Bylaws,” “Our Operating Partnership and the Operating Partnership Agreement,” “Material U.S. Federal Income Tax Considerations,” and “ERISA Considerations,” insofar as such statements constitute summaries of the terms of statutes, rules or regulations, legal matters or governmental proceedings or agreements, contracts and other documents, are accurate and fair summaries of the terms of such statutes, rules or regulations, legal matters or governmental proceedings or agreements, contracts and other documents in all material respects. All agreements between the Company or any of its subsidiaries and any other party expressly referenced in the Registration Statement and the Prospectus are legal, valid and binding obligations of the Company or such subsidiary, as applicable, enforceable against the Company or such subsidiaries, as applicable, as appropriate, in accordance with their respective terms, except to the extent that enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or similar laws affecting creditors’ rights generally and by general equitable principles and, with respect to equitable relief, the discretion of the court before which any proceeding therefor may be brought (regardless of whether enforcement is sought in a proceeding at law or in equity) and, with respect to any indemnification provisions contained therein, except as rights under those provisions may be limited by applicable law or policies underlying such law. The Company’s operating policies, investment guidelines and other policies described in the Registration Statement and the Prospectus accurately reflect in all material respects the current intentions of the Company with respect to the operation of its business, and no material deviation from such guidelines or policies is currently contemplated.
9. Section 6(cc) of the Agreement is hereby amended and restated as follows:
(cc) Form of Certificate. The form of certificates used to evidence the Series A Preferred Stock and the Series B Preferred Stock comply in all material respects with the applicable statutory requirements, with any applicable requirements of the organizational documents of the Company and the requirements of the Exchange.
| 10. | Section 6(vv) of the Agreement is hereby amended and restated as follows: |
(vv) Prior Sales of Common Stock, Series A Preferred Stock or Series B Preferred Stock. Except as disclosed in the Registration Statement and the Prospectus, the Company has not sold, issued or distributed any shares of Common Stock, Series A Preferred Stock or Series B Preferred Stock.
| 11. | Section 7(cc) of the Agreement is hereby amended and restated as follows: |
(cc) Consent to Agent, Forward Seller and Forward Purchaser Purchases. The Company acknowledges and agrees that Agent, the Forward Seller and the Forward Purchaser may, to the extent permitted under the Securities Act and the Exchange Act (including, without limitation, Regulation M promulgated thereunder), purchase and sell shares of Common Stock, Series A Preferred Stock and Series B Preferred Stock for its own account and for the account of its clients while this Agreement is in effect, including, without limitation, at the same time any Placement Notice is in effect or any sales of Shares occur pursuant to this Agreement, any Terms Agreement or the Master Forward Confirmation and any “Supplemental Confirmation” under the Master Forward Confirmation; provided that Agent, Forward Seller and Forward Purchaser acknowledge and agree that, except pursuant to a Terms Agreement, any such transactions are not being, and shall not be deemed to have been, undertaken at the request or direction of, or for the account of, the Company, and that the Company has and shall have no control over any decision by Agent, Forward Seller, Forward Purchaser and their respective affiliates to enter into any such transactions.
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| 12. | Section 7(ff) of the Agreement is hereby amended and restated as follows: |
(ff) Reservation of Conversion Shares. The Company will reserve and keep available at all times the maximum number of Conversion Shares issuable upon conversion of the Series A Preferred Stock or Series B Preferred Stock until such time as such Conversion Shares have been issued or the shares of Series A Preferred Stock or Series B Preferred Stock have been redeemed.
13. Exhibit C-1 of the Agreement is hereby amended and restated in the form attached hereto as Exhibit C-1.
14. Counterparts. This Amendment may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
15. Agreement Remains in Effect. Except as provided herein, all provisions, terms and conditions of the Agreement shall remain in full force and effect. As amended hereby, the Agreement is ratified and confirmed in all respects.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties have executed this Amendment to be effective as of the date first written above.
| Innovative Industrial Properties, Inc. | ||
| By: | ||
| Name: | David Smith | |
| Title: | Chief Financial Officer and Treasurer | |
| IIP Operating Partnership, LP | ||
| By: | ||
| Name: | David Smith | |
| Title: | Chief Financial Officer and Treasurer | |
[Signature Page to Equity Distribution Agreement Amendment No. [[1]/[2]] – [•]]
| ACCEPTED as of the date first-above written: | ||
| [•], as Agent | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Equity Distribution Agreement Amendment No. [[1]/[2]] – [•]]
Exhibit C-1
Form of Opinion and Negative Assurance Letter of Company Counsel
EXHIBIT 5.1
 | 100 N Tampa St Suite 2700 Tampa, FL 33602-5810 813.229.2300 TEL 813.221.4210 FAX foley.com |
November 9, 2026
Innovative Industrial Properties, Inc.
1389 Center Drive, Suite 200
Park City, Utah 84098
Ladies and Gentlemen:
We have acted as counsel to Innovative Industrial Properties, Inc., a Maryland corporation (the “Company”), and IIP Operating Partnership, LP, a Delaware limited partnership (the “Operating Partnership”), in connection with (i) the sale, from time to time, of shares of common stock, par value $0.001 per share, of the Company (“Common Stock”), shares of 9.00% Series A Cumulative Redeemable Preferred Stock, par value $0.001 per share (“Series A Preferred Stock”), and shares of 9.25% Series B Cumulative Redeemable Preferred Stock, par value $0.001 per share (“Series B Preferred Stock”), with an aggregate offering price of up to $500,000,000 (the “Shares”) pursuant to the terms of those certain Equity Distribution Agreements, dated as of May 24, 2024, May 13, 2025, and August 31, 2026, as the case may be (collectively, each as amended, the “Distribution Agreements”), by and among the Company and the Operating Partnership, and each of BTIG, LLC, Piper Sandler & Co., Roth Capital Partners, LLC, Stifel, Nicolaus & Company, Incorporated, A.G.P. / Alliance Global Partners, and Huntington Securities, Inc., each as sales agents for the Company (in such capacity, the “Agents”), and each of Piper Sandler Financial Products II Inc., Stifel, Nicolaus & Company, Incorporated, A.G.P. / Alliance Global Partners, and Huntington Securities, Inc., as forward sellers or forward purchasers (in such capacities, the “Forward Sellers” and the “Forward Purchasers,” respectively, and (ii) those certain Master Confirmations for Issuer Share Forward Sale Transactions, dated as of May 24, 2024, May 13, 2025, and August 31, 2026 (collectively, the “Master Forward Confirmations”), by and among the Company, the Operating Partnership, and each Forward Purchaser. The Shares are included in a registration statement on Form S-3 filed under the Securities Act of 1933, as amended (the “1933 Act”), filed with the Securities and Exchange Commission (the “Commission”) on February 21, 2025 (Registration No. 333-285148) (the “Registration Statement”), and are being offered pursuant to a prospectus dated February 21, 2025 (the “Base Prospectus”) and a prospectus supplement filed with the Commission pursuant to Rule 424(b) under the 1933 Act on November 9, 2026 (the “Prospectus Supplement” and together with the Base Prospectus, the “Prospectus”).
AUSTIN | BOSTON | BRUSSELS | CHICAGO | DALLAS | DENVER | DETROIT | HOUSTON | JACKSONVILLE | LOS ANGELES MADISON | MEXICO CITY | MIAMI | MILWAUKEE | NASHVILLE | NEW YORK | ORLANDO | RALEIGH | SACRAMENTO | SALT LAKE CITY SAN DIEGO | SAN FRANCISCO | SILICON VALLEY | TALLAHASSEE | TAMPA | TOKYO | WASHINGTON, D.C.
November 9, 2026
Page 2
In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (collectively, the “Documents”):
| 1. | The Second Articles of Amendment and Restatement of the Company, as amended to date (the “Charter”), which include the Articles Supplementary setting forth the authorized shares of Series A Preferred Stock filed with the Department of Assessments and Taxation of the State of Maryland on May 23, 2024 (the “Series A Articles Supplementary”) and the Articles Supplementary setting forth the authorized shares of Series B Preferred Stock filed with the Department of Assessments and Taxation of the State of Maryland on October 13, 2026 (the “Series B Articles Supplementary” and, together with the Series A Articles Supplementary, the “Articles Supplementary”); |
| 2. | The Third Amended and Restated Bylaws of the Company, certified as of the date hereof by the Secretary of the Company; |
| 3. | Resolutions adopted by the Board of Directors of the Company (the “Board”) or a duly authorized committee thereof relating to the registration, sale and issuance of the Shares, certified as of the date hereof by the Secretary of the Company (the “Resolutions”); |
| 4. | The Prospectus and the Registration Statement; |
| 5. | A certificate of the State Department of Assessments and Taxation of Maryland as to the good standing of the Company, dated as of a recent date; |
| 6. | Executed copies of the Distribution Agreements and Master Forward Confirmations; |
| 7. | A certificate executed by an officer of the Company, dated as of the date hereof; and |
| 8. | Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein. |
In expressing the opinion set forth below, we have assumed the following:
| 1. | Each individual executing any of the Documents, whether on behalf of such individual or another person, was legally competent to do so, and that each of the parties executing any of the Documents have duly and validly done so. |
| 2. | Each individual executing any of the Documents on behalf of a party (other than the Company) was duly authorized to do so. |
November 9, 2026
Page 3
| 3. | All Documents submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all such Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All statements and information contained in the Documents are true and complete. There has been no oral or written modification or amendment to the Documents, or waiver of any provision of the Documents, by action or omission of the parties or otherwise. |
| 4. | The Shares will not be issued or transferred in violation of any restriction or limitation on transfer or ownership of shares of stock of the Company contained in Section 5.7 of the Charter. |
| 5. | The Company will issue the Shares in accordance with the Resolutions and, prior to the issuance of any Shares, the Company will have available for issuance, under the Charter, the requisite number of authorized but unissued shares of Common Stock, Series A Preferred Stock, or Series B Preferred Stock, as applicable. As of the date hereof, the Company has available for issuance, under the Charter, the requisite number of authorized but unissued shares of Common Stock, Series A Preferred Stock, and Series B Preferred Stock for the issuance of the Shares. |
| 6. | The aggregate gross sales price for the Shares issued pursuant to the Equity Distribution Agreements will not exceed $500,000,000. |
Based upon the foregoing examination and in reliance thereon, and subject to the assumptions, limitations and qualifications stated herein, and in reliance on the statements of fact contained in the documents that we have examined, we are of the opinion that the issuance of the Shares has been duly authorized and when the Shares shall have been duly registered on the books of the transfer agent and registrar therefor in the name or on behalf of the purchasers, or certificates representing the Shares have been manually signed by an authorized officer of the transfer agent and registrar therefor, upon issuance, delivery and payment therefor (not less than par value) in the circumstances contemplated by the Distribution Agreements, the issue and sale of the Shares will have been duly authorized by all necessary corporate action of the Company and the Shares will be validly issued, fully paid and nonassessable.
The foregoing opinion is limited solely to the Maryland General Corporation Law, as amended, and we do not express any opinion herein concerning any other laws, statutes, ordinances, rules, or regulations. We express no opinion as to compliance with the securities (or “blue sky”) laws of the State of Maryland. The opinion expressed herein is subject to the effect of judicial decisions which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements.
November 9, 2026
Page 4
This opinion is issued as of the date hereof, and we assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof. This opinion is limited to the matters set forth herein, and no other opinion should be inferred beyond the matters expressly stated.
We hereby consent to the filing of this opinion letter in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act as Exhibit 5.1 to the Company’s Current Report on Form 8-K to be filed with the Commission on the date hereof (and its incorporation by reference into the Registration Statement) and to the reference to our firm under the caption “Legal Matters” in the Prospectus Supplement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the SEC thereunder.
| Very truly yours, | |
| /s/ Foley & Lardner LLP | |
| FOLEY & LARDNER LLP |
Exhibit 8.1
| 100 N Tampa St Suite 2700 Tampa, FL 33602-5810 813.229.2300 TEL 813.221.4210 FAX foley.com |
November 9, 2026
Via E-Mail and U.S. Mail
Innovative Industrial Properties, Inc.
1389 Center Drive, Suite 200
Park City, Utah 84098
| Re: | Opinion of Foley & Lardner LLP as to Tax Matters |
Ladies and Gentlemen:
We have acted as counsel to Innovative Industrial Properties, Inc., a Maryland corporation (the “Company”) with respect to certain United States federal income tax matters in connection with (i) the sale, from time to time, of shares of common stock, par value $0.001 per share, of the Company (“Common Stock”), shares of 9.00% Series A Cumulative Redeemable Preferred Stock, par value $0.001 per share (“Series A Preferred Stock”), and shares of 9.25% Series B Cumulative Redeemable Preferred Stock, par value $0.001 per share (“Series B Preferred Stock”), with an aggregate offering price of up to $500,000,000 (the “Shares”) pursuant to the terms of those certain Equity Distribution Agreements, dated as of May 24, 2024, May 13, 2025, and August 31, 2026, as the case may be (collectively, each as amended, the “Distribution Agreements”), by and among the Company and IIP Operating Partnership, LP, a Delaware limited partnership (the “Operating Partnership”), and each of BTIG, LLC, Piper Sandler & Co., Roth Capital Partners, LLC, Stifel, Nicolaus & Company, Incorporated, A.G.P. / Alliance Global Partners, and Huntington Securities, Inc., each as sales agents for the Company (in such capacity, the “Agents”), and each of Piper Sandler Financial Products II Inc., Stifel, Nicolaus & Company, Incorporated, A.G.P. / Alliance Global Partners, and Huntington Securities, Inc., as forward sellers or forward purchasers, respectively) and (ii) those certain Master Confirmations for Issuer Share Forward Sale Transactions, dated as of May 24, 2024, May 13, 2025, and August 31, 2026 (collectively, the “Master Forward Confirmations”), by and among the Company, the Operating Partnership, and each forward purchaser. The Shares are included in a registration statement on Form S-3 filed under the Securities Act of 1933, as amended (the “1933 Act”), filed with the Securities and Exchange Commission (the “Commission”) on February 21, 2025 (Registration No. 333-285148) (the “Registration Statement”), and are being offered pursuant to a prospectus dated February 21, 2025 (the “Base Prospectus”) and a prospectus supplement filed with the Commission pursuant to Rule 424(b) under the 1933 Act on November 9, 2026 (the “Prospectus Supplement” and together with the Base Prospectus, the “Prospectus”).
AUSTIN | BOSTON | BRUSSELS | CHICAGO | DALLAS | DENVER | DETROIT | HOUSTON | JACKSONVILLE | LOS ANGELES MADISON | MEXICO CITY | MIAMI | MILWAUKEE | NASHVILLE | NEW YORK | ORLANDO | RALEIGH | SACRAMENTO | SALT LAKE CITY SAN DIEGO | SAN FRANCISCO | SILICON VALLEY | TALLAHASSEE | TAMPA | TOKYO | WASHINGTON, D.C.
Innovative Industrial Properties, Inc.
November 9, 2026
Page 2
We have been asked to provide an opinion regarding (i) the classification of the Company as a real estate investment trust (“REIT”) under the Internal Revenue Code of 1986, as amended (the “Code”)1; and (ii) the accuracy and fairness of the discussion in the Prospectus under the caption “Material U.S. Federal Income Tax Considerations.” Capitalized terms not defined herein shall have the meanings ascribed to them in the Registration Statement.
In rendering our opinions, we have made such factual and legal examinations, including an examination of such statutes, regulations, records, certificates and other documents as we have considered necessary or appropriate, including, but not limited to, the following: (1) the Prospectus Supplement, Prospectus and Registration Statement (including exhibits thereto); (2) the Second Articles of Amendment and Restatement of the Company, as amended through the date hereof; and (3) the Agreement of Limited Partnership of IIP Operating Partnership, LP (the “Operating Partnership”), dated October 4, 2016, and any amendments thereto through the date hereof. The opinions set forth in this letter also are based on certain written factual representations and covenants made by an officer of the Company, in the Company’s own capacity and in its capacity as the general partner of the Operating Partnership, in a letter to us of even date herewith (the “Officer’s Certificate”) (collectively, the Officer’s Certificate, and the documents described in the immediately preceding sentence are referred to herein as the “Transaction Documents”).
In our review, we have assumed, with the consent of the Company and the Operating Partnership, that (i) all of the factual representations, covenants and statements set forth in the Transaction Documents are true, complete and correct, (ii) all of the obligations imposed by any such documents on the parties thereto have been and will be performed or satisfied in accordance with their terms; (iii) the Company and the Operating Partnership each will be operated in the manner described in the relevant Transaction Documents; and (iv) the Company and the Operating Partnership have valid legal existences under the laws of the states in which they were formed and have operated in accordance with the laws of such states. We have, consequently, assumed and relied on your representations that the information presented in the Transaction Documents (including, without limitation, the Officer’s Certificate and the exhibits thereto) accurately and completely describe all material facts relevant to our opinion and that any representation of fact made “to the knowledge of” or similarly qualified is correct without such qualification. To the extent the representations and covenants speak to the intended ownership or operations of the Company or the Operating Partnership, we have assumed that the Company or Operating Partnership, as the case may be, will in fact be owned and operated in accordance with such stated intent. We have not undertaken any independent inquiry into, or verification of, these facts 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. No facts have come to our attention, however, that would cause us to question the accuracy or completeness of such facts or representations in a material way. Our opinion is conditioned on the continuing accuracy and completeness of such representations, covenants and statements. Any material change or inaccuracy in the facts referred to, set forth, or assumed herein or in the Transaction Documents may affect our conclusions set forth herein.
1 Unless otherwise stated, all section references herein are to the Code.
Innovative Industrial Properties, Inc.
November 9, 2026
Page 3
We also have assumed the legal capacity of all natural persons, the genuineness of all electronic and manual signatures, the proper execution of all documents, the legal capacity of signatories, the authenticity of all documents submitted to us as originals, the conformity to originals of documents submitted to us as copies, and the authenticity of the originals from which any copies were made. For documents that have been provided to us in draft form, we have assumed that the final executed versions of such documents will not differ materially from such drafts.
In addition to the foregoing, in rendering the opinions set forth below, we note that the Company and the Operating Partnership will be engaged in the business of acquiring, owning, and managing specialized industrial properties that will be leased to state-licensed businesses that grow and cultivate cannabis on such properties. We further note that, as described in more detail in the Company’s most recently filed Annual Report on Form 10-K for the fiscal year ended December 31, 2025 (“SEC Form 10-K”), cannabis continues to be a Schedule I controlled substance under the U.S. Controlled Substances Act, and therefore, the possession, cultivation, and production of cannabis products continues to be illegal under federal law notwithstanding state laws that may permit such activities. As described in more detail in the SEC Form 10-K, the cannabis industry occupies a unique and uncertain legal status in the United States. The basic federal prohibition under the U.S. Controlled Substances Act remains in place, and former U.S. Attorney General Jeff Sessions rescinded the U.S. Department of Justice’s previously issued memoranda (the so-called “Cole Memo”) instructing federal prosecutors not to take actions against individuals complying with state medical cannabis laws. The impact of this rescission remains unclear. We are not aware of any specific provisions of the Code or the rules or regulations thereunder, any U.S. tax court decisions, or any private letter rulings that cause us to believe that the nature of the Company’s business will negatively impact how the IRS or the courts would apply to the Company the provisions of the Code and the rules and regulations thereunder relative to the Company’s REIT status, but we cannot be certain that the IRS or the courts will not take a position that negatively affects REIT status by reason of the Company’s business. Accordingly, with your permission, we have assumed for purposes of our opinions herein that the IRS and the courts will not apply or interpret the provisions of the Code and the rules and regulations thereunder relative to an entity’s status as a REIT any differently to the Company and its business than they would be applied to any lawful business.
We have also assumed for purposes of this opinion that neither the IRS nor the courts will consider the Company’s current or contemplated business activities, as described in the Prospectus Supplement, Prospectus and Registration Statement, to include a trade or business that consists of “trafficking in controlled substances” within the meaning of Section 280E of the Code.
Innovative Industrial Properties, Inc.
November 9, 2026
Page 4
Based upon, and subject to, the foregoing assumptions and qualifications and the discussion below, we are of the opinion that:
1. Commencing with the Company’s taxable year ended on December 31, 2017, the Company has been organized and operated in conformity with requirements for qualification and taxation as a REIT under the Code, and the Company’s current and proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code, assuming the Company’s election to be treated as a REIT is not either revoked or intentionally terminated under the Code; and
2. The discussion in the Base Prospectus under the caption “Material U.S. Federal Income Tax Considerations” and in the Prospectus Supplement under the caption “Additional Material U.S. Federal Income Tax Considerations,” to the extent it constitutes matters of law, summaries of legal matters or legal conclusions, is correct in all material respects and fairly summarizes the U.S. federal income tax considerations that are likely to be material to a holder of the Company’s Shares, subject to the qualifications set forth therein.
We express no opinion on any issue relating to the Company, the Operating Partnership or the discussions in the Base Prospectus under the caption “Material U.S. Federal Income Tax Considerations” and in the Prospectus Supplement under the caption “Additional Material U.S. Federal Income Tax Considerations” other than as expressly stated above.
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 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 Internal Revenue Service (“IRS”), and court decisions.
The Company’s qualification and taxation as a REIT will depend upon the Company’s ability to meet on a continuing basis, through actual annual operating and other results, the various requirements under the Code as described in the Prospectus Supplement, Prospectus and Registration Statement with regard to, among other things, the sources of its gross income, the composition of its assets, the level of its distributions to stockholders, the diversity of its stock ownership and the Company’s utilization of any and all appropriate “savings provisions” (including, without limitation, the provisions of Sections 856(c)(6), 856(c)(7), and 856(g) and the provision included in Section 856(c)(4) (flush language) allowing for the disposal of assets within 30 days after the close of a calendar quarter, and all available deficiency dividend procedures) available to the Company under the Code to correct violations of specified REIT qualification requirements of Sections 856 and 857. Our opinions set forth above do not foreclose the possibility that the Company may have to utilize one or more of these “savings provisions” in the future, which could require amending prior year tax returns and/or the payment of an excise tax and/or penalty tax (either of which could be significant in amount) in order to maintain its REIT qualification. Foley & Lardner LLP will not review the Company’s compliance with these requirements on a continuing basis. Accordingly, no assurance can be given that the actual results of the operations of the Company and the Operating Partnership, the sources of their income, the nature of their assets, the level of the Company’s distributions to stockholders and the diversity of its stock ownership for any given taxable year will satisfy the requirements under the Code for the Company’s qualification and taxation as a REIT. To the extent that the facts differ from those represented to or assumed by us herein, our opinion should not be relied upon.
Innovative Industrial Properties, Inc.
November 9, 2026
Page 5
The foregoing opinions are based on relevant provisions of the Code, Treasury Regulations issued thereunder (including Proposed and Temporary Regulations), and interpretations of the foregoing as expressed in court decisions, administrative determinations, and the legislative history as of the date hereof. These provisions and interpretations are subject to differing interpretations or change at any time, which may or may not be retroactive in effect, and which might result in modifications of our opinions. In this regard, an opinion of counsel with respect to an issue represents counsel’s best judgment as to the outcome on the merits with respect to such issue, is not binding on the IRS or the courts, and is not a guarantee that the IRS will not assert a contrary position with respect to an issue, or that a court will not sustain such a position if asserted by the IRS. The IRS 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 that may change the other legal conclusions stated herein. As described in the Prospectus Supplement, Prospectus and Registration Statement, the Company’s qualification and taxation as a REIT depend upon the Company’s ability to meet the various qualification tests imposed under the Code, including through actual annual operating results, asset composition, distribution levels and diversity of stock ownership, the results of which have not been and will not be reviewed by Foley & Lardner LLP. Accordingly, no assurance can be given that the actual results of the Company’s operation for any particular taxable year will satisfy such requirements.
The foregoing opinions are limited to the United States federal income tax matters addressed herein, and no other opinions are rendered with respect to other United States federal tax matters or to any issues arising under the tax laws of any other country, or any state or locality. This opinion letter is rendered to you for your use in connection with the Prospectus Supplement, Prospectus and Registration Statement and may be relied upon solely by you and the purchasers of Shares pursuant to the Prospectus Supplement, Prospectus and Registration Statement, and it speaks only as of the date hereof. Except as provided in the next paragraph, this opinion letter may not be distributed, quoted in whole or in part or otherwise reproduced in any document, filed with any governmental agency, or relied upon by any other person for any other purpose (other than as required by law) without our express written consent.
Innovative Industrial Properties, Inc.
November 9, 2026
Page 6
We consent to the use of our name under the captions “Material U.S. Federal Income Tax Considerations” and “Legal Matters” in the Prospectus Supplement, Prospectus and Registration Statement and to the use of these opinions for filing as Exhibit 8.1 to the Registration Statement. In giving this consent, we do not hereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, or the rules and regulations of the Commission thereunder.
| Very truly yours, | |
| /s/ Foley & Lardner LLP | |
| FOLEY & LARDNER LLP |