Multi-unit housing is a fascinating subject for interdisciplinary study, involving, by turns, the tools of property law, sociology, geography, political science, corporations, contract law, and governance ( Gibbons, 2011a ). Similar issues and problems arise across and between jurisdictions ( Van Der Merwe, 2000 ). This paper focuses on one particular area within the study of multi-unit housing: management agreements, and critiques the law relating to management agreements for multi-unit housing in New Zealand through the lens of the model of Blandy et al. (2006) , both applying and extending their model.
While multi-unit housing can take a range of legal forms ( Dupuis and Dixon, 2010 ), the most common form of multi-unit housing in New Zealand is a unit title pursuant to the Unit Titles Act 2010, which repealed the earlier Unit Titles Act 1972. New Zealand's unit titles legislation is heavily based on the strata title legislation of Australian states such as Victoria, New South Wales, and Queensland ( Thomas, 2011 ; Gibbons, 2011b ). Under New Zealand's unit titles legislation, all unit owners within the development comprise the “body corporate”, which has the attributes of being both a collective of proprietors and a separate legal entity with specific legal obligations. Balancing these attributes can give rise to some tensions ( Gibbons, 2008 ). Within this framework, the term “management agreement” is not one of precise definition, and management agreements can take a range of forms. For example, a body corporate may enter into an agreement with a third party to provide secretarial services (such as coordinating meetings of the body corporate); or building management services (such as maintenance and repair of common areas). While Sherry (2010, p. 162) has described management rights as “the business associated with physical maintenance and management”, the phrase “management agreement” or “management rights” might also refer to letting rights, or an arrangement entered into by individual unit owners, rather than the body corporate.
This paper begins by setting out the model of Blandy et al. (2006) , and then considers how this model has been applied by Sherry (2010) to management agreements in the Australian state of New South Wales, where she has identified the notion of “developer abuse”, whereby a developer imposes an unreasonable long-term management agreement in respect of units in a development, with the developer profiting from that contract to the detriment of unit owners. After discussing the “bundle of rights” notion of property in the context of multi-unit housing, the paper tests existing models in New Zealand in the context of decided cases on management agreements. Through these decided cases, this paper shows the appropriateness and utility of existing critiques of the regulation of management agreements. This paper extends existing models by identifying five phenomena that arise from New Zealand cases: namely, the problems arising from a “third contract”, beyond the “two contracts” identified by Sherry (2010) ; a paradox of disempowerment when unit owners challenge body corporate management agreements; the notion of subdivided management rights; the difficulties arising from a bright line between owners' unit property and collective common property; and the triumph of form over substance in the regulation of management agreements, as only management agreements of a certain form are regulated, while agreements in a different form but with the same substantive content may avoid legal challenge. These phenomena, which illustrate the extent to which “developer abuse” extends across jurisdictions, are likely to be of more general application, and demonstrate the limitations of existing regulatory arrangements.
The Blandy, Dupuis and Dixon model
The model of Blandy et al. (2006) for studying multi-unit housing focuses on three phenomena: first, it approaches property ownership as a bundle of rights, and examines how the bundle for multi-owned housing differs from other bundles, such as for fee simple ownership; second, it examines law as an instrument of power; and third, it considers critical legal events, such as the developer's purchase of the underlying land, the establishment of a managing entity, and the sale of individual properties or lots. In their 2006 study, the importance of clarifying rights and relationships was one of four points requiring particular attention in New Zealand and England; by 2010, when a book-length study was published ( Blandy et al., 2010 ), the regulation of property managers in particular was seen as a cross-jurisdictional priority.
Bugden (2011) has identified that management agreements may be regulated in a range of different ways, and Sherry (2010) has applied Blandy et al. (2006) model to long-term management agreements in New South Wales. Observing the phenomenon of “developer abuse”, Sherry (2010, p. 159) has identified that her analysis has general application:
There is a story of power imbalance and developer abuse that has been played out repeatedly in multi-owned housing across the globe and across time. It relates to the developer's ability to cause the body corporate to enter into long-term contracts at the inception of the development, when the developer as owner of all of the units controls the body corporate. The developer does this in order to gain financial benefit for itself and its related companies. However, these contracts frequently do not benefit the body corporate or the ultimate owners of the units […] [they reflect] a practice that the law has struggled to contain effectively.
Sherry's study focused on management rights, or “the business associated with physical maintenance and management” (p. 162), noting that while management rights are the subject of a contract between a management company and the body corporate, the sale of management rights takes place in a separate contract between a developer and a particular management company, prior to the sale of any units. The “two contracts” approach identified by Sherry (2010) reflects one of the key “critical legal events” described by Blandy et al. (2006, 2010) . After comparing issues around developer disclosure and fiduciary obligations of developers in New South Wales and the USA, Sherry (2010, p. 169) comments that “management rights sales and litigation in Australia […] is a case of history repeating itself”. She argues that Australian law should allow for termination of developer-made service and employment contracts by residential communities.
This article applies the analyses of Blandy et al. (2006, 2010) and Sherry (2010) to body corporate management agreements in New Zealand. Through a study of decided cases and legislative reform, it demonstrates that Sherry (2010) is correct that “history repeats itself”, with unit owners suffering continued powerlessness in a range of contexts. This analysis extends on Sherry's by highlighting the problem of a “third contract” for the on-sale of management rights, and identifies the difficulties associated with an approach that focuses on legal form over substance. This reflects a point made by Bourdieu (1987) , that one of ways in which power is exercised in the juridical field is to through the “magic words” of lawyers that privilege particular forms of legal wording and documentation above others. A key implication of this finding is that while recent legislative amendment in New Zealand has sought to regulate management contracts along the lines of the recommendations of Blandy et al. (2010) and Sherry (2010) , there remain significant difficulties with New Zealand's regulatory regime. This analysis therefore provides important guidance for those seeking reform in other jurisdictions.
The bundle of rights and unit ownership
Ownership of an apartment, whether as a unit title (as in several Australian states and New Zealand), a strata title (as in certain other Australian states, and a number of Asian and North American jurisdictions), a condominium (as in certain other North American jurisdictions) or otherwise, is often regulated in quite specific and statute-oriented ways. Some have questioned whether apartment ownership is genuine ownership ( Van Der Merwe, 2000 ), while others have argued that unit living need be seen as anything less than more traditional forms of ownership ( Bounds, 2010 ), or that it is better seen as something different to, rather than less than traditional fee simple ownership ( Gibbons, 2008 ).
While there are a number of contemporary challenges to the notion of property ownership as a bundle of rights ( Katz, 2008 ; Smith, 2012 ), following the lead of Blandy et al. (2006) , it has been argued that the notion of property ownership as a bundle of rights is particularly apposite for unit titles and other forms of multi-owned housing, as certain rights inherent in this sort of ownership cannot be separated or “unbundled” ( Gibbons, 2011b ). Among the rights inherent in unit ownership under New Zealand law are:
Various rights and responsibilities set out in Sections 79 and 80 of the Unit Titles Act 2010, including the...
