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ScottS21 (California)
Posts: 6
Posted:
I'm in California. When I bought my condo 3 years ago it already had an air conditioner built into the outside wall. This is a violation of the HOA laws because it's their wall and it can't be modified w/out permission. They recently sent me a letter telling me to remove the air conditioner and repair the hole. Does anyone know if I have a leg to stand on when it comes to fighting their request? Is something like this 'grandfathered' in because it's been this way for about 7 years?

Thanks... Scott

LarryB13 (Arizona)
Posts: 4,099
Posted:
I am not a lawyer, but my understanding is that during closing when you purchased the seller was supposed to disclose any liens and any violations to you. My reading of Davis-Sterling leaves me unclear as to whether the association also had a duty to make violations known.

Assuming that the air conditioner is installed where it is easily seen, I would think the association would have an uphill battle arguing their case in court seven years after the violation occurred and after remaining silent during the transfer of title.

By the way, this is not a violation of HOA laws. It is only a breach of the condo's declaration.
ScottS21 (California)
Posts: 6
Posted:
Thank you Larry. That's some great info. Much appreciated.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Scott

It would not be uncommon for the prior owner to be being fined for such and you were not notified at closing. It also would not be uncommon for a BOD to grant a waiver to an owner with the understanding that when they sell the issue will be taken care of by the new owner.

Maybe what we have here is failure to communicate.

CarolR11 (Colorado)
Posts: 2,563
Posted:
Welcome to the Forum, Scott.

In CA the Seller is responsible for providing numerous disclosures. The seller normally gets these materials from the HOA. But the HOA is not required to provide them to prospective buyers. Just one of those disclosures is whether there are any outstanding violations of the governing documents what you're calling "laws." The violation you describe probably is in your Covenants (CC&Rs), but it may be in your Rules & Regulations.

I too live in a condo building and our restrictions against the penetration of exterior walls is in our CC&Rs.

1. So, you want to read them or your Architectural restrictions & Change documents to see if your HOA has that restriction--it most likely does. Our HOA would never waive such a major requirement, but perhaps yours would.

2. You want to review your closing docs from when you purchased to see if seller disclosed this violation. If not-and push comes to shove-you might be able to get seller to pay for returning the wall to its original condition. That is, is the statutes of limitation haven't expired on this type of issue.

3. See (5) below, i.e., the HOA still can require you to fix it. Whether there's a statue of limitation on the HOA's demand would take consulting with a lawyer. Please remember that it was your job before the purchase to read your HOA's Rules, CC&Rs, etc. As JohnB always says caveat emptor!

4. But you do have rights! The HOA's demand to remove the AC unit, patch, etc., requires calling you to a hearing with the Board. The "invitation" to the hearing must occur several days in advance of said hearing. Here, you can show evidence of the violation having been ignored for many years, that seller didn't disclose the violation (if in fact the HOA ever sent a violation notice to the seller!) and so on. Plead your case. For legal notice of violations, see your own Rules & Regs, your CC&Rs. If nothing is there, go to Davis-Stirling.com, Main Index, Violations.

5. If you have access to a director or to your property mgr. if you have one, see them before the hearing to get some hint about how long they've known about this, etc.

Civil Code §1368. Disclosure Requirements of Seller.

"(a) The owner of a separate interest . . . shall, as soon as practicable before transfer of title to the separate interest or execution of a real property sales contract therefor, as defined in Section 2985, provide the following to the prospective purchaser: [NewCode#: Civ. Code §4525]

(5) A copy or a summary of any notice previously sent to the owner pursuant to subdivision (h) of Section 1363 that sets forth any alleged violation of the governing documents that remains unresolved at the time of the request. The notice shall not be deemed a waiver of the association’s right to enforce the governing documents against the owner or the prospective purchaser of the separate interest with respect to any violation. This paragraph shall not be construed to require an association to inspect an owner’s separate interest.

Read more: Civil Code §1368 http://www.davis-stirling.com/Statutes/CivilCode1368/tabid/908/Default.aspx#ixzz2xNwuSKPJ from Davis-Stirling.com by Adams Kessler PLC.

Finally, a couple of question for you, Scott. How many units in your HOA? How many are on the Board? How old is your HOA? Is the AC unit visible from the street? From the homes of others?
JanetB2 (Colorado)
Posts: 4,219
Posted:
Hi Scott:

Many states have a "statute of limitations" regarding certain items. While we are not attorneys and any advice is only from other citizens I would suggest you review the following under the California Davis Stirling statutes:

http://www.davis-stirling.com/tabid/722/Default.aspx#axzz2xbVWGjN9

LarryB13 (Arizona)
Posts: 4,099
Posted:
Scott,

In re-reading your original post you stated, "it's their wall and it can't be modified w/out permission." This implies that the air conditioner could be installed if permission was granted.

Since your A/C unit has been in place for about seven years, it is possible that the first owner obtained permission and that your current board is unaware of that. It could be that the earlier board's records are lost, or that the permission was granted verbally, or that the present board has not bothered itself to search through its own records. If a previous board granted permission to install the A/C then the current board is bound by that decision.

Given the sorry state of record-keeping in most associations I would start off by requesting all records from about 8 years ago until now and watch them pucker because they are not likely to have them.

In addition to statute of limitations defenses, you can also assert that the parties (your unit's former owner and the association) constructively modified the declaration. The owner installed the unit in the wall and the association acquiesced to that installation. Had the association had an objection to the installation it should have spoken up at a more meaningful time, such as immediately upon discovery. Sitting on one's hands when it is time to object is usually construed as a waiver of the objection.

BTW, when the current board finally gives in and approves the A/C, record the document so the next owners won't go through this. I recommend that for anyone in any association who has been granted any sort of permit, approval, or waiver. Recording these documents with the public recorder will prevent a lot of future arguing and searching through shoe boxes of personal records.

JanetB2 (Colorado)
Posts: 4,219
Posted:
Quote:
Posted By LarryB13 on 04/01/2014 4:20 AM

BTW, when the current board finally gives in and approves the A/C, record the document so the next owners won't go through this. I recommend that for anyone in any association who has been granted any sort of permit, approval, or waiver. Recording these documents with the public recorder will prevent a lot of future arguing and searching through shoe boxes of personal records.


Larry ... Great idea and suggestion!!! I never would have thought of that idea but you are right it would eliminate future arguing and in some cases potential lawsuits.

JohnB26 (South Carolina)
Posts: 1,569
Posted:


SUPER EXCELLENT RE: RECORDING DOCUMENT

CarolR11 (Colorado)
Posts: 2,563
Posted:
I like your idea a lot, Larry. We've made some approved modifications to our condo unit. The approvals supposedly are in our "unit file" in the management office. But are they really??
JeffT2 (Iowa)
Posts: 880
Posted:
According to this page from davis-stirling.com, the statute of limitations is five years for the HOA to enforce (as long as you meet the conditions). They cite CA Code of Civil Procedure 336(b) and a court case. It looks very good for you.

http://www.davis-stirling.com/MainIndex/FailuretoEnforce/tabid/3264/Default.aspx#axzz2svtfytFt

On the other hand, since the AC unit is in a common area wall, they can remove the AC, fix the wall, and send you the bill. So even if they cannot enforce the CC&Rs due to the statute of limitations, they can still make it happen -- probably with you paying for it.

By the way, you are wasting a lot of money with a seven-year old AC. Your board may be doing you a favor. Why not replace it with an AC that saves you money in a better location?
ScottS21 (California)
Posts: 6
Posted:
Thank you all for the information. I'll have to some reading this weekend.
CarolR11 (Colorado)
Posts: 2,563
Posted:
From my earlier post, Scott: "Finally, a couple of question for you, Scott. How many units in your HOA? How many are on the Board? How old is your HOA? Is the AC unit visible from the street? From the homes of others?" Thanks.
ScottS21 (California)
Posts: 6
Posted:
Quote:
Posted By CarolR11 on 04/03/2014 2:25 PM
From my earlier post, Scott: "Finally, a couple of question for you, Scott. How many units in your HOA? How many are on the Board? How old is your HOA? Is the AC unit visible from the street? From the homes of others?" Thanks.

We have 165+ condos. There are 4 people on the Board. They should have a 5th as soon as the voting is complete. The AC unit is viewable from the street. It's above the fence-line and VERY obvious.
JanetB2 (Colorado)
Posts: 4,219
Posted:
Hi Scott:

Question: If the unit finally fails would you want to replace with same or look at other options?

Reason I ask is potentially to avoid a battle would your HOA go for this unit allowed as it falls under current statute of limitations, then in the future when the unit needs replaced an alternative can be found? This in turn gives you an amount of time to find an alternative method and have money saved for future replacement. Just a thought to reduce conflict.

ScottS21 (California)
Posts: 6
Posted:
Quote:
Posted By JanetB2 on 04/03/2014 3:47 PM
Hi Scott:

Question: If the unit finally fails would you want to replace with same or look at other options?

Reason I ask is potentially to avoid a battle would your HOA go for this unit allowed as it falls under current statute of limitations, then in the future when the unit needs replaced an alternative can be found? This in turn gives you an amount of time to find an alternative method and have money saved for future replacement. Just a thought to reduce conflict.


I would replace the unit if it failed. I had an estimate of 13,000 dollars for a ductless system, but that price is way too high for my budget. I've attached a picture of the unit for everyone's reference.
ScottS21 (California)
Posts: 6
Posted:
Sorry, the image didn't attach.
JohnB26 (South Carolina)
Posts: 1,569
Posted:
An 18,000btu 'Mit@#$%^hi' 'mini split' should be about $7-8K INSTALLED
JohnB26 (South Carolina)
Posts: 1,569
Posted:
ps. if you can't afford compliant a/c - live w/o
KellyM3 (North Carolina)
Posts: 2,239
Posted:
Since you're making approved improvements to the condo, take a look at cleaning up the window unit sticking through the wall. You may be undoing the benefits of your recent work if the first impression of your property is a AC unit, above the fence line that's very obvious. You can probably win the battle but, value-wise, lose the war with your property. This concerns how you want your property perceived as much as any HOA battle.
SG3 (Pennsylvania)
Posts: 63
Posted:
I agree. These type things are unsightly and affect property values. Further, one unit starts then others follow. Best to clean up the facade. That's why we have HOA's.

ChayydT (Arizona)
Posts: 1
Posted:
Quote:
Posted By LarryB13 on 03/29/2014 12:27 PM
I am not a lawyer, but my understanding is that during closing when you purchased the seller was supposed to disclose any liens and any violations to you. My reading of Davis-Sterling leaves me unclear as to whether the association also had a duty to make violations known.

Assuming that the air conditioner is installed where it is easily seen, I would think the association would have an uphill battle arguing their case in court seven years after the violation occurred and after remaining silent during the transfer of title.

By the way, this is not a violation of HOA laws. It is only a breach of the condo's declaration.

Great Advice Larry
PitA
Posts: 1,416
Posted:
That's why we have HOA's.


NO

We have HOAs (today) in order to maintain the engineered storm water retention and drainage systems now required by the clean water act.
TimB4 (Tennessee)
Posts: 21,061
Posted:
All,

This thread is a year old.

IraN (Washington)
Posts: 6
Posted:
Yet,

STILL TOTALLY RELEVANT.

Obviously.

Here's a big surprise: Summer happens every single year, and prior to the summer season, people may haplessly move into a rental not understanding that the HOA documents they are signing are WORLDS apart from the normal CC&R documents they have probably signed before when renting previous residences. Sometimes slowly, sometimes quickly, you realize you're trapped in a hell you can't escape from.

It's summer. You have a house that faces west. The sun beats down on it all day, and even in the winter time on a sunny day the walls get warm to the touch. In the summer, you'd swear there was a fire on the other side of the wall. If it's 80 outside, it's 100+ in this place you now spend most of your income on.

You know right away that this is going to be a problem because the gigantic tree right outside the hottest area of your unit is home to at least one hornets nest, and you're allergic to hornets.

So opening those windows is out of the question. You immediately inform the property management company of the problem. After several days, they respond with an e-mail stating that they will not be replacing the screens, nor would they reimburse us for doing so because they are not legally required to provide screens for windows. You're appalled. They were so nice when you were being shown the unit, and now they have just sentenced you to a life in an oven. Within that same week, some anonymous person lets the property management company know that you're using drapes that are out of compliance. They send you an e-mail with the complaint and demand you take them down.

This is baffling and further increases your hatred of this place because you've still got the venetian blinds pulled and cannot see the drapes...unless you were to sit and stare at the windows all day for us to adjust them, and peer in with binoculars to determine the color. Very. Creepy. On the anger side, you're even more livid because the reason you put these curtains up is they are designed to block heat. You're now convinced they care more about the appearance of this place (which by the way - this place is hideous and next to section 8 housing) than the lives of their tenants. You demand to speak to the landlord. You find the law that states they are required to give you the name and contact info of the actual landlord. They tell you they don't have to provide that information.

You throw the RCW at them word for word..... and then silence..... until your actual landlord calls you a week or so later informing you that he's fired that company for doing such a terrible job. He seems nice, and relatively personable. He ribs you in person for being a smoker, but he's a cancer survivor, so you get that he's got a unique perspective on health. Quick sigh of relief. He comes in and says we're fine, but explains that the screen in what happens to be the MOST heat affected room in the unit is not cheap to replace, but he'd be happy to take it out of our rent if we chose to replace it. After we saw the price tag, you came up with alternatives.

You find a good deal on a portable AC unit, and install it. At first it's a tough install....because In the course of doing so, you use a level and realize now that your apartment (all the end units on your side) has actually slowly been sinking into the ground for who knows how long. So it takes a bit of time and patching to get it installed properly without being an eyesore - using cardboard to fill in the gaps temporarily, you know.

Not one day later, there's a knock on the door from a board member. You tell them you know why they are here, and that you have a plan to have it fixed within two days. You fix it as promised, they approve, and that should be the end.

An unusual and rather unexplainable thing happens shortly after this...

My girlfriend's car was missing one morning. We called to inquire, and found out that the HOA had it towed for violating the parking agreement.

This was complete.
and utter.
BS.

My girlfriend was away on business, and I made a POINT of sticking like glue to their stupid policy of not allowing residents to park their cars out front in the three spots reserved for "guests" because she'd already received warnings (also unwarranted) for parking in the same spot too long. They refused to tell us WHO in the HOA demanded it be towed, or provide us any evidence that we had broken the rules. Truth is, I think they just didn't like her car. It wasn't pretty. It was an old beige Mercury Sable with bumperstickers all over it and scuffs and scrapes on the body. Now that she has a "nice family car" (a PT Cruiser), she will often park in the same space after work for days or even weeks on end without a single notice.

sidenote: The sick thing is, the gated parking lot is mostly empty. Residents are restricted to one space per unit. There are more spots than there are units. One really cool thing about our "secured" parking lot is that the gate randomly opens on it's own, and we're in an area ripe with gang activity, prostitutes, a section 8 housing next door, and a tent city three blocks away. Yes. We pay for this privilege. And how dare we try to park close to the building. They have a policy It's rarely enforced. My friend that lives there has had threats of being towed, but she is an owner and as soon as she said she'd file suit if they did, they backed off and jut got...creepy. They would send her pictures in the mail of her own car parked in front of the building. WTF? I digress.

But that slanting thing...right...hmmm...
ohh..... that explains the lack of screens in certain windows.

It also explains the little things you didn't notice at first.... none of the windows seem to open or shut easily....

the venetian blinds pop out of place a year later anytime you try to adjust them....

Then the folding doors for the laundry fall off track and after a few more months, adjusting the track manually isn't even enough to get it put back into place.

Then... your patio door won't lock. Considering the dung heap of a neighborhood we're in, I'm glad we're on the second floor.

At the 1.5 year mark, suddenly you are awoken by your dwelling vibrating and a loud, jackhammer like sound coming from below you outside. Your pictures are rattled off the wall. Your windows seem like they are going to burst. It's 7am. No noise is allowed before 8am! They have made that VERY clear!

You go out on your balcony and see a group of contractors removing the entire patio of the unit directly below yours. Hmm...that's interesting, you think. The next day, they come back. Then you hear some dispute going on between a board member and the lead guy on the contractor team. You can't make out exactly what it is, but it's not good. The contractors leave in a huff. They've put up a scaffolding inches below your patio, and stapled a weighted down bright blue tarp to the thing. Pieces of the patio's railing are strewn about the yard. Over the next year, a new set of contractors will occasionally come out and provide an estimate. A couple even do work on it for a day, and give up. No idea what for sure is going on, but I'd have to guess it has something to do with this side of the building sinking.

Back to that. So, one stormy winter day, you notice the part of the AC unit that vents out the window is getting rattled by the wind. WHOA! You scramble to get it secured. That's when you realize why it was rattling around; the building has sunk so much that it no longer fits properly. So, using gaffer tape, you secure it in place. You tell your landlord and anyone that asks. Besides, it's just a few tiny pieces of tape. Nothing like that hideous blue tarp and broken patio.

In the meantime, you notice some pretty messed up things. The only real friend you have here tells you about a board member that yells at her for using the workout room during allowed hours (like, mid-afternoon), because it's TOO LOUD. She starts receiving nastygrams and board complaints on her door (she's an owner - don't ask me why). Then, one night you catch this vile, vindictive old hag in the act. She stomps around the common area at night with her arms folded. If she hears a peep (and you can hear a pin drop at night due to the weird acoustics outside here)... even if that peep is usually people next door in section 8 screaming or having domestic violence incidents and the cops show up with sirens blaring...nope, it has to be someone here. So she stomps around the yard looking in people's windows. If she sees tv lights flash, a light on, or hears someone chuckle, she stomps up to their residence and pounds on the door. The thing is, because of the weird acoustics there's no real way to be sure where the sound is coming from. I know this, because at night I turn the subtitles on and have the volume so low I can barely here it. And she has pounded on our door in the middle of the night when everyone was asleep. Yes, I know I just switched from third to first person. deal with it.

Then, the really weird stuff happens. At first, my step daughter noticed that there was "weird foamy stuff" coming out of someone's door. I went to investigate and it looked like some kind of industrial glue...like someone had tried to glue the door to the apartment shut. The next day, we're walking down the hall and in HUGE letters spray painted on the wall are the words C*NT and W*ORE next to the glued apartment. I thought, "Whoa..... that's messed up." The next day, they painted over it, and the day after that the words were back, but bigger, more of them, and stretched from the apartment door all the way down the hallway. Whoever it was doing this was gaining access to the building. No one posted anything about it on the bulletin boards, no notices on doors. No one said anything face to face. Then, the next day, I see that there are obvious crowbar marks next to the....now pried open door. No lights...just blackness inside. I got tingly feelings on the back of my neck and called the cops. Months later, I find out that it was a known violent convicted felon with warrants out for - among other things - domestic violence against the girl that lived in that apartment. Turns out the HOA knew about this the whole time, and did not notify anyone to keep a lookout for this guy or - you know - maybe warn families with kids at LEAST that a VIOLENT HOMICIDAL MANIAC has been sneaking into the building every night, and even took shots at the front entry way door (oh yeah, bullets went through).

So days after I find this out.... this little shit takes over as the president or head of the nazi board. Little guy, with no arms. He'd always been super nice to me before. But now, suddenly, he's Herr Dictator. One day he is roaming around outside of the building and sees me on my patio. He goes, "Hey....Do you know what's up with that hole in the side of the building?" I came down and looked. Above my daughters window - a good five to ten feet above it - was what to anyone that knows their arse from a hole in the ground would recognize as a dryer vent. I said, "That's just a dryer vent."

"Well, why doesn't it have the thingy on it?"

"I don't know. Maybe it got knocked off because this place is shifting? Just a guess."

"huh. Interesting." and he walked off.

Next day, my landlord calls me. We'd been accused of drilling an effing hole through the wall, and he demanded we let them in for inspection ASAP. Of course, armless wonder comes in with his gestapo buddies and *gasp* find nothing.

idiots.

In a remarkable coincidence, the next day EVERYONE had little typed notes tacked to their doors demanding they remove their window units, their fans, their canopy's, their... whatever infraction they could find. Mind you, this is in the middle of the longest heatwave Seattle's ever had (at least in my life time). I know, people love to scoff and say, "Bah! AC?! It's only warm three days a year!" No. Out of the last three months, I can remember a handful of days where it wasn't unbearably hot inside these apartment buildings. But Herr Dictator has to take charge! Show us who's boss! Lay down the law!

Later that week, the mean old lady pounds on my door at 8:30pm - mind you - that's an hour and a half before quiet time. I had a friend over. We were talking. She starts in with "Yes..you see...EVERY night I can hear YOUR TV just BLARING."

"Let me stop you right there. I very sincerely doubt that what you are saying is true. If you want to, go ahead and file a complaint. OK? Good night." I shut the door. I've run out of patience for this place.

In another shocking coincidence, last week (approx. 1 week since mega b*tch found out I knew she was and is full of crap), we get a call from our landlord's assistant letting us know that we'll be receiving a document in the mail notifying us of an increase in rent....when our landlord - to our face (but not in writing) told us he would never raise rent here. She let us know that we'd had a complaint against us about the "unsightly AC unit"...and one from mega b*tch complaining - not about the noise - but that I was "rude to her." LOL. Wow. Let's take a look at this again....

The bits of tape I have in the window (rather, had. I decided to play nice and find another solution yesterday), were worth freaking out about, because, you know, when someone comes to look at the condos to rent or buy, they're not going to notice the big ugly tarp that's been hanging out for almost two years and is getting shredded to pieces....nor will they take note of the sounds of insanity, stench of decay, or all of the malt liquor swilling losers cackling their asses off out in front between our building and section 8....None of that will be noticed by anyone, but OH boy! That one window looks like it's slightly different! That's a deal breaker for us! RIIGHT.

So we're basically being forced out without being evicted. Typical passive aggressive Seattle resident BS behavior.

HOA's are bull. They are run by people that have crappy lives, and are in desperate need to feel in control and have power over *something* to fill that hole in their brain that the rest of us fill up with empathy, compassion, logic, and reason. They are weak people pretending to play God. If you are an HOA lover, you are Anti-American. There is no argument. You don't like the constitution the way it is, so you invent your own based upon your own pettiness and desire to control others. You've found a legal way to have your commune and be a dictator too. I seriously find it hard to believe that it's pure coincedence that the people that - typically - are board members and really, really care about HOA's and keeping everyone inline, making sure no one shows a shred of individuality or slightly inconveniences anyone, are the same generation that were once called the "Peace and Love" generation. The activists, the hippies, the people that wanted justice and believed in personal freedom. These same people, many of them no doubt, tried living on communes and watched them crumble or get raided. So, now here we are. They've become embittered, and that part of them that's still too much of a hippie to believe in the constitution as is have glommed on to each other in retirement. The people that gave the finger to the mainstream now get red faced if you dare do anything outside of their communist standards. And they will screw you, just for the fun of it. Is there anyone to hold THEM accountable? NOPE. Do they pick and choose targets that they know are easy, i.e. the young, the poor, the new families, the single income families, or the people that they deem as a threat to their Gold-Bond and Pot smoke filled lives? YEP.

FUCK YOU ALL.
TimB4 (Tennessee)
Posts: 21,061
Posted:
Ira,

Sorry to hear about your situation.

Per your posting, you failed to understand what you were getting into (an expensive, at least emotionally, lesson).

Per your posting, the landlord offered to allow you to buy the screen and deduct it from your rent. You chose not to do that. Why you chose to not do this I don't understand (as it would have been part of the rent payment, so cost wasn't the issue).

Therefore, some (not all but some) of the issues were brought on by yourself.

Hopefully, once your lease is up you will use what you have learned to find a better apartment where you can more easily follow the covenants.
IraN (Washington)
Posts: 6
Posted:
I didn't mean to imply frustration with my landlord himself over the screen. My frustration was with the attitude of the property management company, when they literally told me they wouldn't replace it because they didn't legally have to.

The main reason it was so offensive to my sensibilities is that I grew up helping my grandparents oversee and take care of their many rental properties. The only time I ever saw my grandfather look up a law or consult an attorney was when one guy put up a huge sign that read "WARNING: Trespassers will be shot!", and the guy wasn't kidding. Other than that, if people needed help or had a problem with keeping up the property, we'd take care of it or try to work something out. We never did not do something simply because we weren't legally obligated to do so. The particular screen I referred to was for a very large window, and, of course, it couldn't just be any screen. It had to have the right color frame, be the right kind of mesh, etc. because of HOA policies. So it turned out to be more expensive than we have ever been able to afford.

As for the property management company with a bad attitude and shady practices, that was the last straw for him. He thought they were terrible as well and gave them the boot so we now deal with him directly. Sorry if I wasn't clear on that.

I apologize for posting my original rant as a reply to this one. I'd meant to start a new thread. If it gets moved or deleted that would be great.

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