GOODWIN, Chief Judge:
Gerald M. Hocking, a disappointed purchaser of a unit in a condominium complex in Hawaii sued the brokers who sold the unit, claiming violations of the antifraud provisions of the Securities Exchange Act of 1934, 15 U.S.C. § 78j (1982), and Rule 10b-5, 17 C.F.R. § 240.10b-5 (1988). He appeals a summary judgment in favor of the brokers.
After a three-judge panel’s decision had reversed the summary judgment,1 the court [1452]*1452granted rehearing en banc and the case was reargued on supplemental briefs focused upon the question whether the transaction at the heart of this case involved a “security” within the meaning of the federal security laws.
The district court noted that “this action lies close to the edge of those transactions which have been found to be regulated by the Securities Act as investment contracts,” but concluded that Hocking had not raised a triable issue of material fact as to whether DuBois had offered him a “security.”
At best we can ascertain from the present record,2 and reading it in the light most favorable to Hocking, the facts are as follows:3
Hocking was a resident of Las Vegas, Nevada. Following a visit to Hawaii, Hocking became interested in purchasing a condominium there as an investment. Deposition at 12, 52. Dubois was a real estate agent licensed in Hawaii, employed by defendant Vitousek & Dick Realtors, Inc. Dubois met Hocking through her husband, one of Hocking’s co-workers. Deposition at 12.
Dubois agreed to search for a condominium for Hocking, and in the spring of 1979 proposed that Hocking purchase a condominium in the resort complex at 2121 Ala Wai, Honolulu, which had been listed with Vitousek & Dick. Deposition at 7-8. The resort complex was developed by Aetna Life Insurance Company, and was still under construction at that time. Deposition at 33. Hocking had told Dubois that he wanted to buy a condominium directly from the developer, to be a “first person buyer.” Deposition at 8. In fact, the condominium unit sold to Hocking was owned by Tovik and Yaacov Liberman, who had purchased from the developer. Agreement of Sale, ER at 10, 19. Hocking did not independently inquire into who was developing the complex at 2121 Ala Wai, but relied on Dubois’ assurances that he would be purchasing directly from the developer. (At this stage of the record the question of buying directly from the developer or in the “secondary” market is only of eviden-tiary value in shedding light on the terms of sale). Hocking had no contact with Aet-na, and he knew of no connection between defendants and the builders of the condominium complex. Deposition at 101-102.
Dubois told Hocking, according to his deposition, that “the investment would be handled [for him] by a local company, or her company or someone that she would help [him] get in touch with.” Deposition at 8. She informed Hocking that a rental pool arrangement (RPA) would be available to Hocking if he were to purchase the condominium. She also told him that the condominiums were renting for an average of $100 a day, from which he calculated the monthly income would be $2,000 to $3,000 per month. Affidavit at 2. He relied on the expected rental income to cover his monthly payments and provide additional [1453]*1453income. Id. While Dubois expressed no requirement that Hocking participate in the rental pool arrangement, Hocking testified that but for the availability of the rental pool arrangement he would not have purchased the condominium. Deposition at 62-63.
Hocking entered into an agreement to purchase the condominium from the Liber-mans. He signed the agreement on June 23, 1979 in Nevada, and Tovik Liberman signed on July 2, 1979 in Hawaii. Agreement of Sale, ER at 19. Hocking also entered into several agreements with Hotel Corporation of the Pacific (HCP) concerning rental of the condominium.
On June 29, 1979 he signed a rental management agreement (RMA) appointing HCP exclusive agent to manage his condominium. ER at 24. He also entered into an Individual Agency Rental Agreement for Pooled Operation, the RPA, executed on July 5, 1979, to become effective on December 20, 1979. Supplemental ER at 240. This agreement placed Hocking’s condominium in HCP’s rental pool.4
Finally, on July 21, 1979, he signed an addendum to the RPA, which HCP executed on July 31, 1979. Supplemental ER at 243. Among other things, this addendum postponed the effective date of the RPA until the earlier of December 31, 1982 or that time when the developer had sold all the units in the development.
Hocking testified in his affidavit that Du-bois presented these agreements to him and assured him they were mere standard forms, and further, that he neither read nor fully understood the agreements he signed. Affidavit at 4.
The rental management agreement gave Hocking the right to terminate the RMA upon 30-days written notice, with termination effective at the end of any current lease. The RPA’s termination provisions are more complicated. During the initial year of pooled operation Hocking had the right to terminate at any time upon 15-days notice. In subsequent years he could terminate the RPA once annually upon 90-days notice. HCP reserved the right to terminate should the number of units participating in the rental pool fall below 40 percent of the total number of units in the complex. The condominium owners could collectively terminate the RPA upon an election to do so by 75% of those participating in the RPA. The RPA was to terminate on December 31, 1984. Finally, HCP was given the option to renew the RPA for two additional five-year terms.
Hocking alleges that his investment was entirely passive, and that he relied on Du-bois to select, manage, and protect his . investment. Third Amended Complaint at 2-3. He relinquished control of his investment at the time he purchased it and had access to his unit for only two weeks each year. Affidavit at 3. He knew that approximately fifty other condominium owners participated in the rental pooling arrangement. Id. When he visited the building in Hawaii, he observed that it was operated like a hotel, and he received copies of brochures and advertisements which HCP distributed on the mainland. Id.
Hocking purchased the condominium for $115,000, with a downpayment of $24,000 and installment payments on the remaining portion of the purchase price through June 1982, at which time all unpaid amounts were to become due. Hocking’s complaint states that he “cancelled” his investment when this balloon payment came due. Third Amended Complaint at 4. The failure to make the payment apparently caused the forfeiture of his prior payments. He claims the loss of his investment was caused by the failure to receive the expected rental income, and by further .misrepresentations of Dubois concerning appreciation in the value of the condominium and her efforts to resell the condominium in 1981 and 1982. Third Amended Complaint at 3-5; Affidavit at 2-3.
We are in general agreement with the three-judge panel’s statement of our function in reviewing a summary judgment:
[1454]*1454We review the grant of summary judgment de novo. SEC v. Belmont Reid & Co., 794 F.2d 1388, 1390 (9th Cir.1986). Our task is identical to the trial court’s: while viewing the evidence in the light most favorable to Hocking, we must determine whether the defendants have shown that there are no disputed issues of material fact and that they are entitled to judgment as a matter of law. Alaska v. United States, 754 F.2d 851, 853 (9th Cir.), cert. denied, 474 U.S. 968, 106 S.Ct. 333, 88 L.Ed.2d 317 (1985). We also review de novo the district court’s determination whether a transaction is a security. Belmont Reid & Co., 794 F.2d at 1390.
839 F.2d at 563.
The Supreme Court has provided further guidance on the appropriateness of summary judgment in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Celotex tells us that on an issue where the plaintiff has the burden of proof, as Hocking does here, the defendant may move for summary judgment by simply pointing out the absence of facts to support the plaintiff’s claim, “identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. “[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322, 106 S.Ct. at 2552.
Defendants’ joint motion for summary judgment identified portions of the pleadings and other materials which they believed demonstrated the absence of a genuine issue of material fact. Defendants claimed they were entitled to summary judgment because: (1) Hocking had no contact with the developer, Aetna; (2) Hocking alleged no connection between defendants and Aetna; (3) Hocking did not depend on HCP to increase the value of his condominium; (4) Hocking was not required to enter into the RPA as a condition of purchasing the condominium; (5) defendants made no representations regarding how much income the condominium would produce; and (6) Hocking intended to sell the condominium within a short time after purchase.
Defendants claimed that, based on these facts, Hocking had failed to raise a triable issue of fact as to whether he had purchased a security. First, Hocking’s testimony established that he did not depend on HCP to increase the value of his property, making it clear that he was not dependent upon the managerial efforts of others, and therefore failed to meet the SEC v. W.J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946), test as outlined in SEC v. Glenn W. Turner Enters, Inc., 474 F.2d 476 (9th Cir.1973).
Second, Hocking did not purchase the condominium from Aetna, he was not required to enter into the RPA as part of the purchase, the previous owner had not entered into an RPA, and the rental agreement he entered into was not part of the sale of the Liberman’s condominium. Therefore, Hocking had not raised a triable issue as to whether there was an “offering” as required under Securities Act Release No. 33-5347.5
Third, Hocking had proposed to Dubois that he enter into a like-kind exchange for the condominium. This proposal demonstrated that Hocking was well-informed, sophisticated, and placed little reliance on Dubois.
Hocking responded with an affidavit. He testified, among other things, that: (1) while Dubois did not represent how much rent he would receive each month, she did [1455]*1455tell him what he could expect on a daily basis; (2) he did depend on income from the pooling agreement to cover monthly rent payments, and would not have purchased the condominium without the collateral rental agreements; (3) failure to receive the rental income led to loss of the investment; (4) he did rely on the managerial efforts of HCP, relinquishing control over the condominium to HCP and giving up access for all but two weeks a year; (5) he was not a sophisticated investor, but lacked education, training, or experience; (6) the like-kind exchange was not his idea, but something proposed to him by a local real estate agent in Las Vegas; (7) Dubois repeatedly told him that the value of the condominium was increasing, and that he should not sell it.
Hocking did not deny his lack of contact with Aetna, or his lack of knowledge of any connection between defendants and Aetna.
As the non-moving party, Hocking had no occasion to raise issues of fact regarding any links between Dubois and HCP, since defendants had not claimed that the lack of such links entitled them to summary judgment.
In order for Hocking to make a claim under the securities laws, he must show that Dubois’ alleged misrepresentations were made in connection with the purchase or sale of a security. Both section 2 of the Securities Act of 1933, 15 U.S.C. § 77b(1) (1982), and section 3 of the Securities Exchange Act of 1934, 15 U.S.C. § 78c(1)(10) (1982), define the term “security” to include any “investment contract.”
The term “investment contract” has been interpreted to reach “[njovel, uncommon, or irregular devices, whatever they appear to be ...” SEC v. C.M. Joiner Leasing Corp., 320 U.S. 344, 351, 64 S.Ct. 120, 124, 88 L.Ed. 88 (1943). “It embodies a flexible rather than a static principle, one that is capable of adaptation to meet the countless and variable schemes devised by those who seek the use of the money of others on the promise of profits.” Howey Co., 328 U.S. at 299, 66 S.Ct. at 1103 (1946).
In Howey, the Supreme Court found that the combined sale of land and a land service contract, under which the purchaser relinquished all control over the land for a 10-year period, was an investment contract. The Court there put forward the classic definition of an investment contract:
[A]n investment contract for purposes of the Securities Act means a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party, it being immaterial whether the shares in the enterprise are evidenced by formal certificates or by nominal interests in the physical assets employed in the enterprise.
Id. at 298-99, 66 S.Ct. at 1103. Howey rejected the suggestion “that an investment contract is necessarily missing ... where the tangible interest which is sold has intrinsic value independent of the success of the enterprise as a whole.” Id. at 301, 66 S.Ct. at 1104.
Subsequent cases have merely refined the three prongs of the Howey test. While the first prong, an investment of money, has proved relatively simple, the other two have evolved with time. As discussed below, the second prong’s requirement of a “common enterprise” has been construed by this Circuit as demanding either an enterprise common to the investor and the seller, promoter or some third party (vertical commonality) or an enterprise common to a group of investors (horizontal commonality).
While Howey’s third prong demanded an expectation of profits “solely from the efforts of the promoter or a third party,” Id., 328 U.S. at 299, 66 S.Ct. at 1103, we have dropped the term “solely” and instead require that “the efforts made by those other than the investor are the undeniably significant ones, those essential managerial efforts which affect the failure or success of the enterprise.” Glenn W. Turner Enters., 474 F.2d at 482.
We must therefore determine whether Hocking’s purchase of a condominium and rental pool was (1) an investment of money, (2) in a common enterprise, (3) with an expectation of profits produced by the efforts of others.
[1456]*1456In Howey, as here, the investors purchased real estate and at the same time relinquished much of the right to use or enter the property. 328 U.S. at 296, 66 S.Ct. at 1101. In Howey, as here, the investors were not obligated to purchase the service contracts, and in fact some decided to purchase the land without a service contract. Id. at 295, 66 S.Ct. at 1101. In Howey, as here, the investors were generally nonresidents who lacked the skill, knowledge and equipment necessary to manage the investment. Id. at 296, 66 S.Ct. at 1101.
There is no doubt that, had Hocking purchased the condominium and the rental pool directly from the developer and an affiliated rental pool operator, and had the rental pool been for a long term without any provision for early termination, Hocking would have purchased a security. If that were the case, we would merely substitute Hocking’s Hawaiian condominium for Howey's Floridian citrus grove.
Hocking, however, did not purchase the condominium in the initial offering from the developer. He purchased in the secondary market from the Libermans. Further, Hocking entered into the rental pool agreement with HCP, and has, defendants argue, failed to demonstrate any link between HCP and the developer. Finally, unlike the investors in Howey, Hocking could legally terminate the RPA according to its terms and regain control over the condominium. We must determine therefore whether these differences from How-ey make Hocking’s alleged transaction into an ordinary real estate purchase or whether it nevertheless could prove to be the purchase of a security.
SECURITIES AND EXCHANGE COMMISSION RELEASE
The Securities and Exchange Commission has long recognized the securities laws’ potential applicability to sales of condominiums for investment. In 1973 the SEC issued a release in order to “alert persons engaged in the business of building and selling condominiums ... to their responsibilities under the Securities Act and to provide guidelines for a determination of when an offering of condominiums or other units may be viewed as an offering of securities.” Offers and Sales of Condominiums or Units in a Real Estate Development, Securities Act Release No. 33-5347, 1 Fed.Sec.L.Rep. (CCH) ¶ 1049 (Jan. 4,1973) (listed at 17 C.F.R. § 231.5347 (1988)).
Release 5347 puts developers and promoters on notice of three situations which the SEC views as involving the offering of a security.6 The three-judge panel found the second of these situations present: Hocking’s transaction included “[t]he offering of participation in a rental pool arrangement.” While the district court had held that the optional nature of the rental pool took it out of the SEC guidelines, the panel rightly pointed out that neither Release 5347 nor Howey are limited to mandatory collateral arrangements. 839 F.2d at 565. The release speaks of an “offering” of a rental pool arrangement, not a requirement that the purchaser enter an RPA. As noted above, in Howey the purchasers were not obligated to enter into service contracts.
On rehearing en banc, the Securities and Exchange Commission has filed an amicus brief with the court, putting forward a different argument why Release 5347 is not controlling. The SEC points out that Release 5347 applies to “persons engaged in the business of building and selling condominiums ...,” 1 Fed.Sec.L.Rep. (CCH) ¶ 1049, at 2070, and not to brokers in the secondary market. Not only does the SEC claim the release applies only to develop[1457]*1457ers, it claims that, although not readily apparent from the language of the release, and although perhaps inconsistent with the SEC Division of Corporate Finance’s refusal to take a no-action position in Embarcadero, [1976-77] Fed.Sec.L.Rep. (CCH) ¶ 80,956 (Dec. 3, 1976), the release only applies to developers who have an affiliation or selling arrangement with a rental pool operator.
Given the SEC’s position, we do not rely on Release 5347 in determining whether Hocking was offered a security. We instead examine the alleged transaction entirely in terms of the Howey test.
THE PACKAGE OFFERED TO HOCKING
Before applying the Howey test to the facts of this case, we must determine what exactly Dubois offered to Hocking. Most of the cases finding a real estate transaction to involve a security have been direct offerings from a developer that include collateral agreements. This fact has led defendants to attempt to distinguish Hocking’s purchase based on the lack of supposedly necessary links between the developer, the Libermans, HCP and Dubois. Hocking, however, has not claimed that the developer, the Libermans, or HCP sold him a security. He claims that by promoting the Libermans’ condominium ' vith án emphasis on the economic benefits to be derived from the managerial efforts of third parties designated or arranged for by Dubois,” and by including with the condominium an offer for a rental arrangement or rental pool arrangement, Dubois offered him a security.
There is no question that Dubois offered Hocking the condominium. The Libermans had listed their unit with Vitousek & Dick, and Dubois acted as the Libermans’ real estate agent in selling the condominium to Hocking. Defendants argue, however, that Dubois could not “offer” the RPA or other rental agreements to Hocking.
Nothing in the record indicates, and Hocking has not argued, that Dubois could legally bind HCP to enter into the RPA or other agreements with Hocking. There is no evidence that the Libermans transferred to Hocking a legally enforceable option to join the RPA, or that Dubois had legal authority to act on behalf of HCP. Dubois could not “offer” the RPA in the sense of common law contract offer and acceptance.
The inability of Dubois to make a binding contractual “offer” of the RPA to Hocking, however, does not mean that the RPA cannot be considered part of the package she offered him for purposes of determining whether that package was a security under Howey. In attempting to determine whether a scheme involves a security, the inquiry is not limited to the contract or other written instrument. “Characterization of the inducement cannot be accomplished without a thorough examination of the representations made by the defendants as the basis of the sale. Promotional materials, merchandising approaches, oral assurances and contractual agreements were considered in testing the nature of the product in virtually every relevant investment contract case.” Aldrich v. McCulloch Properties, Inc., 627 F.2d 1036, 1039-40 (10th Cir.1980) (citations omitted) (reversing dismissal of complaint claiming that land sale with collateral representations involved a security); see also Jenne v. Amrep Corp., [1978] Fed.Sec.L.Rep. (CCH) ¶ 96,343 (D.N.J.1978). As the Supreme Court has repeatedly said:
[I]n searching for the meaning and scope of the word ‘security’ in the Act[s], form should be disregarded for substance and the emphasis should be on economic reality. Tcherepnin v. Knight, 389 U.S. 332, 336, 88 S.Ct. 548, 553, 19 L.Ed.2d 564 (1967).
United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 848, 95 S.Ct. 2051, 2058, 44 L.Ed.2d 621 (1975). In defining the term investment contract, Howey itself uses the terms “contract, transaction or scheme,” 328 U.S. at 298-99, 66 S.Ct. at 1103, leaving open the possibility that the security not be formed of one neat, tidy certificate, but a general “scheme” of profit seeking activities. Such a “scheme” cannot be fully assessed by examining only those items a broker was legally authorized to offer an investor.
Similarly, it is worth noting that the term “offer” has a different and far broad[1458]*1458er meaning in securities law than in contract law. See, e.g., Diskin v. Lomasney & Co., 452 F.2d 871, 875 (2d Cir.1971) (Friendly, J.); SEC v. Commercial Inv. & Dev. Corp. of Florida, 373 F.Supp. 1153, 1164 (S.D.Fla.1974) (finding a newsletter stressing the importance of shareholders’ soliciting others was “offer to sell”). It is enough if the items were presented to Hocking as part of the same transaction or scheme, and that he purchased them as such.
Hocking states in his deposition and affidavit that Dubois assured him rental of his investment would be taken care of for him, Deposition at 8, that it would be handled by “the company” for him, Deposition at 27, that she informed him of the average daily rental, Affidavit at 2, that she presented the rental agreements to him for his signature, Affidavit at 4, and that without the rental agreements, he would not have entered into the transaction. Deposition at 62-63. It is undisputed that Dubois did go out and find someone to enter into a rental agreement with Hocking. These facts support the allegations of Hocking’s complaint that:
[a]s part of the said transaction, DuBois offered to Hocking and included [with the condominium] a rental arrangement or rental pool arrangement for the said condominium with emphasis on the economic benefits to Hocking to be derived from the managerial efforts of third parties designated or arranged for by Du-Bois from rental of said condominium. ... Hocking’s said investment was entirely passive, and he relied solely upon DuBois to select, manage, and protect his investment.
Complaint at 2.
We also cannot ignore the fact that HCP did accept the RPA and other agreements Hocking signed, and that these agreements were entered into immediately following the purchase of the condominium.
Even if Dubois could not legally bind HCP to enter into the rental arrangements with Hocking, we think it “not inappropriate that [Dubois’] offerings be judged as being what they were represented to be.” Joiner Leasing Corp., 320 U.S. at 353, 64 S.Ct. at 125 (1943). Hocking has put forward numerous facts concerning whether the condominium sale and rental agreements were presented to him as parts of one transaction. These facts distinguish this case from the everyday situation where a real estate agent or broker merely provides information to the purchaser regarding the availability of a rental pool or shared amenities such as a swimming pool or tennis courts. They also distinguish this case from the situation where, after a purchase and separate from any inducement to purchase, a real estate agent or broker arranges for a rental pool. Taken together these facts are sufficient to raise an issue of material fact for the trier to decide whether the RPA and other agreements were part of one scheme or transaction Dubois offered Hocking.7
[1459]*1459THE HOWEY TEST
A. Investment of Money-
Defendants attempt to pull apart the package into two separate transactions. They argue that even if Hocking did invest money in the condominium, he did not invest money in the RPA, and it is the RPA which provides the elements necessary to satisfy the Howey test’s other requirements. Therefore, they claim, Hocking did not satisfy this first requirement.
Admittedly, there would be an argument as to whether the “investment of money” requirement had been met if someone who already owned a condominium decided to place the condominium into a rental arrangement, independent of the decision to purchase the condominium. If, however, the condominium and rental agreements were offered as a package, there can be no serious argument that Hocking did not invest money in the package. Since Hocking has created an issue of fact over whether the condominium and RPA were sold as a package, he has met this first requirement of Howey for purposes of summary judgment.
B. Common Enterprise
We agree with Judge Reinhardt’s discussion for the panel of the Ninth Circuit law on Howey’s common enterprise requirement. 839 F.2d at 566-67. The Ninth Circuit accepts either traditional horizontal commonality or, when no pooling among investors is present, a strict version of vertical commonality.
The simple purchase of real estate lacks any horizontal commonality, as no pooling of interests or profits is involved. The purchase of real estate combined with an RPA, however, does evidence horizontal commonality. The participants pool their assets; they give up any claim to profits or losses attributable to their particular investments in return for a pro rata share of the profits of the enterprise; and they make their collective fortunes dependent on the success of a single common enterprise. Because in this case Hocking has raised facts supporting horizontal commonality, we need not consider vertical commonality.
Of course, whether Hocking can prove horizontal commonality at trial will depend [1460]*1460on whether he can show that Dubois offered a package which included the RPA. As discussed above, Hocking has raised a genuine issue of fact as to that question.
C. Expectation of Profits Produced by the Efforts of Others
This third prong of Howey forms the greatest hurdle for Hocking, assuming he can prove at trial that the condominium and rental agreements were part of one package. He must show an expectation of profits produced by the efforts of others, that the efforts of others are “those essential managerial efforts which affect the failure or success of the enterprise.” Glenn W. Turner Enters., 474 F.2d at 482.
The crux of defendants’ argument on this point is that the rental agreements allowed Hocking to maintain a high degree of control over his condominium, thus making any managerial efforts of Dubois or HCP non-essential to the success of Hocking’s investment.
Hocking was not required to enter into any of the rental agreements as a prerequisite of purchasing the condominium. He elected to delegate control of the condominium to HCP. Further, the rental agreements gave Hocking various termination rights described above, allowing him to regain control over the use and management of his investment.
Defendants point out it was the purchaser’s election to delegate control and ability to regain control that led to the conclusion that the third requirement of Howey had not been satisfied in Fargo Partners v. Dain Corp., 540 F.2d 912, 915 (8th Cir.1976). See also Schultz v. Dain Corp., 568 F.2d 612 (8th Cir.1978). Both Fargo Partners and Schultz involved purchasers of entire apartment buildings. The Schultz court limited the reach of its holding, noting that “this is not a case where a small investor must rely on the seller’s efforts because he lacks business knowledge, finances or control over the operations. Schultz had considerable business experi-ence....” 568 F.2d at 616. The absence of any legal requirement to delegate control in Fargo Partners and Schultz amounted at the same time to the absence of any practical need to delegate control. As an inexperienced, non-resident, individual investor Hocking is different from Schultz.
Other cases show that the question of an investor’s control over his investment is decided in terms of practical as well as legal ability to control. As defendants acknowledge, where the investor maintains legal control over his investment (or the ability to regain control), in order to claim the investment is a security he must show practical dependence, an inability to exercise meaningful powers of control or to find others to manage his investment. See Gordon v. Terry, 684 F.2d 736, 742 (11th Cir.1982); Williamson v. Tucker, 645 F.2d 404, 424-25 (5th Cir.1981).
Williamson, the leading case on the control issue, states that where the investor is a general partner or joint venturer, he must establish that:
(1) an agreement among the parties leaves so little power in the hands of the partner or venturer that the arrangement in fact distributes power as would a limited partnership; or (2) the partner or venturer is so inexperienced and unknow-ledgeable in business affairs that he is incapable of intelligently exercising his partnership or venture powers; or (3) the partner or venturer is so dependent on some unique entrepreneurial or managerial ability of the promoter or manager that he cannot replace the manager of the enterprise or otherwise exercise meaningful partnership or venture powers.
645 F.2d at 424. Of course, under different facts or legal arrangements other factors might give rise to such a dependence on the promoter or manager that exercise of control would be effectively precluded. Id. at 424 n. 15.
We have previously adopted Williamson ’s approach. Deutsch Energy Co. v. Mazur, 813 F.2d 1567, 1570 (9th Cir.1987) (finding purchasers of oil well sites for $1.5 million were not “inexperienced and unknowledgeable members of the general public” and therefore were not incapable of exercising management powers over the investment); Matek v. Murat, 862 F.2d [1461]*1461720 (9th Cir.1988) (applying Williamson test and holding no security alleged, as partnership agreement “provided the plaintiffs with sufficient power to protect their investments,” and they “made no showing and are unable to show they were prevented from exercising their powers under the agreement”). Williamson simply requires that we examine the economic reality of the investor’s relation with the manager or promoter. See McConnell v. Frank Howard Allen & Co., 574 F.Supp. 781 (N.D.Cal.1983) (applying the Williamson test to deny summary judgment on securities claims of general partners in real estate partnership). Therefore, in the absence of any legal obligation to delegate control of his investment, Hocking must establish that his exercise of control was precluded for all practical purposes.
The record presents a material question of fact: was Hocking dependent on Dubois or HCP, and unable to exercise control over his investment? Hocking claims to be an unsophisticated, inexperienced investor, lacking any special training or education. He resides thousands of miles away from the location of the investment. He is not in the business of managing condominiums or other real estate. He has raised a genuine issue of fact whether he requested and received an offer of management services.
Further, Hocking observed that the condominium complex was “operated like a hotel from the lobby,” and that HCP distributed brochures and advertisements on the mainland. Affidavit at 3. Numerous other condominium owners participated in the RPA, id., and HCP reserved the right to terminate the RPA if the number of participating units fell below 40 percent of the units in the complex. Supplemental ER at 240. In the RPA agreement, the participating units are referred to as the “Resort.” Id.
Hocking’s affidavit and deposition raise a genuine issue of fact whether he intended his investment to be entirely passive, and whether, as alleged, he “relied solely on Dubois to select, manage, and protect” his investment. Complaint at 2-3. This is, however, a different inquiry than whether he lacked the ability to manage his investment.
Hocking has not met the first factor suggested in Williamson. He has not raised facts showing that his arrangement with Dubois and HCP leaves him so little power as to place him in a position analogous to a limited partner. He certainly exercised more power, at least over his individual unit, than would a limited partner investing in the construction of a similar resort.
Hocking has at least raised questions of fact material to Williamson’s second and third suggested factors. With regard to the second factor, he claims to be an unsophisticated and inexperienced investor; he is an individual making a “passive” investment from thousands of miles away. This raises the question whether he is incapable of intelligently exercising his legal powers to manage his condominium.
The third factor suggested in Williamson provides the closest fit to an investment in a resort condominium involving an RPA. Hocking’s investment is a unit in a resort condominium, allegedly operated as a hotel, with many investors pooling their units together. In order for Hocking to replace HCP, he would have to gain the votes of 75 percent of participating investors. These facts alone create a real question whether Hocking was stuck with HCP as a rental manager. Had Hocking purchased a residential condominium for investment purposes, to be rented out to long-term tenants, then it would have been a relatively easy matter to switch rental agents. Managing a resort operated as a hotel, which solicits guests from the mainland and charges nightly rates for short-term visits, may be a much more difficult service to replace than that of a long-term leasing agent. The commercial viability of a one-room hotel does not strongly argue for separate management. The individual investor may have no choice but to place his condominium in the rental pool, if he is to receive significant rental income.
Because Hocking’s pleadings and affidavit raise issues of fact with regard to two factors considered in Williamson, we need not consider other factors or approaches that might demonstrate Hocking’s practical inability to control his investment. Hock[1462]*1462ing has at least raised an issue of fact as to his ability to manage the investment, and as to the uniqueness of HCP’s RPA as a method of producing income from the condominium.
Defendants also protest that Hocking’s deposition statements prove his intent was to resell the condominium quickly for a profit, and that he therefore could not have depended on rental income from the RPA for his profits, or expected profits from the efforts of the rental pool operator. Even in this regard, Hocking indicated he merely planned to sell “when [Dubois] instructed [him] it was the best time to sell.” Further, in his affidavit Hocking testifies that the rental arrangement was a necessary element of the transaction, that he had expected the rental income to cover his monthly payment, and that the failure to receive the rental income resulted in the loss of his investment. Placed in this light, Hocking’s deposition statements concerning a possible quick resale do not eliminate the question of fact concerning the third prong of Howey — whether Hocking expected profits from the efforts of others to carry the investment until he could sell it. The deposition statements that Hocking intended to resell quickly merely provide the type of conflicting evidence that a trial is designed to resolve.
CONCLUSION
We agree with defendants and amici that the three-judge panel may have written too broadly its conclusion that so long as a rental pool ‘option’ exists, all secondary market sales necessarily involve a security. Such a per se rule would be ill-suited to the examination of the economic reality of each transaction required by Howey. In the context of isolated resales, each case requires an analysis of how the condominium was promoted to the investor, including any representations made to the investor, and the nature of the investment and the collateral agreements. The investor’s intentions and expectations as communicated to the broker would be relevant in determining what investment package was actually offered.
If the Howey analysis is undertaken, the securities laws are found to apply, and the application of the securities laws places undue burdens on developers, real estate brokers, or condominium owners, changes in the law should be sought from Congress or the Securities and Exchange Commission. Howey, on this record, requires this case to proceed beyond summary judgment.
REVERSED AND REMANDED.8