Landlord's Legal Kit For Dummies
Overview
Howdy, landlord! Get on the right side of the law with Dummies
Landlord's Legal Kit For Dummies contains all the resources landlords need to unpack the legal side of renting properties. Inside you'll find worksheets, templates, and friendly explanations that will help you find success. Once you have your property and your tenants, you'll need to make sure you operate within your rights, complete all the necessary admin, and handle taxes in an accurate and timely way. This book can help you do just that, with the latest paperwork, helpful details and examples, and a breakdown of taxes and laws. Plus, you can go beyond the book by accessing online documents that take your learning to the next level.
- Understand all the latest housing laws that pertain to your specific rental situation
- Find drafts of all the legal forms you’ll need as a landlord
- Access easy-to-use tax worksheets and clear descriptions of tax rules without legal jargon
- Recognize your rights as a landlord and understand your tenants' rights
This is the perfect Dummies guide for both new and experienced landlords who need a hands-on legal reference for all the laws surrounding rent, rental properties, and tenants.
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About The Author
Robert Griswold is President of Griswold Real Estate Management Inc and has served on the Counselors of Real Estate. Robert is the author of several Dummies titles.
Laurence (“Laurry”) Harmon is President of Harmon Law LLC. He specializes in real estate law and provides extensive teaching, market research, and consulting on real estate subjects.
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landlord's legal kit for dummies
CHEAT SHEET
Being a landlord certainly sounds easy. All you have to do is line up responsible residents, maintain the property, and count your money as the rent rolls in, right? Actually, no. Owning and leasing residential real estate requires that you comply with a host of federal, state, and local laws. Certain residents may complicate your life by taking legal action against you or forcing you to take legal action against them.
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Dozens of federal, state, and local laws govern the residential rental industry and the landlord-resident relationship. All of these laws are important. The following calls to your attention ten important laws for you to know and follow when you're a landlord.
The Fair Housing Act
The Fair Housing Act prohibits you from discriminating against applicants or residents based on any of the seven protected classes:
Race
Color
Sex
National origin
Religion
Handicap
Family status
The Fair Housing Act establishes only the minimum protections.
Being a highly qualified landlord who is committed to customer satisfaction plays a big role in avoiding the legal pitfalls of managing residential rental properties. If you treat your residents with contempt and fail to address their needs, you’re likely not to be respected by your tenants.
Assess your landlord readiness
Not everyone is cut out to be a landlord.
General Real Estate Careers
With landlords, staying out of legal trouble is a lot less costly and aggravating than getting out of legal trouble. Here are ten preventive measures that can help you avoid lawsuits and defend yourself when such lawsuits are unavoidable.
Act beyond reproach
Complying with the law is the bare minimum. To stay out of legal trouble, act ethically — above the law and beyond reproach, such as:
Screen applicants using only those characteristics that matter
Treat residents with respect and consideration.
General Real Estate Careers
Landlord's Legal Kit For Dummies has more than 150 forms that can help make being a landlord easier. Following the law and making sure you're complying with legal developments can improve the odds of staying out of trouble and increase your probability of success with your income-producing real estate investments.
The federal Fair Housing Act prohibits you, as landlord, from discriminating against or giving preferential treatment to people based on a protected class — a characteristic that can't be used to discriminate against or in favor of an individual or group. The Fair Housing Act specifies the following seven protected classes:
Race: Ethnicities or cultures, including African American, Caucasian, Hispanic, and Asian.
General Real Estate Careers
Every residential rental contract, whether it's a lease or a month-to-month rental contract, contains an implied warranty of habitability. In other words, even if not included in the contract, you, the landlord, are obligated to your residents to provide living space that's fit for human occupancy and complies with state and local building, health, and safety codes that materially (significantly) affect a tenant's health and safety.
General Real Estate Careers
Residents often need or want to take on a new roommate, sublet the rental unit, or assign their rental contract to someone else. To deal with these types of situations, consider this advice when you’re a landlord:
Require that all prospective roommates be screened and added to the rental contract.
Prohibit residents from subletting their rental units.
General Real Estate Careers
As a landlord, your resident screening process is a potential target for a discrimination lawsuit. To protect yourself as the landlord, keep a paper trail that documents the procedure you use to screen every prospect’s rental application along with any paperwork that process generates.
As a result, you must save records for both approved and rejected applicants.
General Real Estate Careers
One of the most common sources of landlord-resident disputes is the return of security deposits. To prevent confusion and disagreements, make sure you establish security deposit policies and procedures that address the following:
Amount: Usually no more than the equivalent of one- or two-month's rent. Some states and municipalities have specific limits.
General Real Estate Careers
As a landlord, you can’t address safety hazards unless you know about them. There are two ways to identify potentially dangerous conditions: by having residents notify you of any safety concerns and by conducting regular safety inspections.
Encourage residents to report safety concerns
Your residents may notice a safety hazard before you do, so encourage them to report any potential or actual safety concerns immediately.
General Real Estate Careers
The covenant of quiet enjoyment is a promise to residents that you, as the landlord, will protect the residents’ right to undisturbed use of the rental property. A nuisance is anything that a reasonable person would consider to be offensive or seriously annoying, in violation of the covenant of quiet enjoyment, including the following:
Foul odors
Intrusive neighbors (or landlords)
Loud noise or music
Solicitors
Smoke, particularly tobacco and marijuana smoke
Vibrations from nearby machinery
You have an obligation to your residents to prevent nuisances and eliminate any nuisances that you become aware of.
General Real Estate Careers
As landlord, your repair and maintenance obligations ensure that your rental units and common areas are habitable and fully compliant with local codes. But legislators don’t hold you solely responsible for the cost of maintaining your rental property and keeping it in good repair. Residents have duties to maintain their units and pay for any damage (beyond normal wear and tear) that they or their guests cause.
General Real Estate Careers
The number one source of landlord-resident disputes is the disposition of the resident’s security deposit. You can avoid many of these potential problems by conducting a pre-move-in inspection with your new resident and completing and signing an inspection checklist.
Complete and sign the inspection checklist
By using an inspection checklist at the time of both move-in and move-out, you can avoid many potential misunderstandings and disagreements.
General Real Estate Careers
Whenever landlords have a dispute with a resident that can’t be resolved, taking the matter to small-claims or municipal court is a viable option. Small-claims courts are typically funded through tax dollars, so court costs are minimal. The jurisdictional limits for these courts range from $2,000 to $15,000, but the majority are $5,000 or less.
General Real Estate Careers
The Internet is an exceptionally popular and productive medium for residential advertising, because many people begin their search for apartments online. However, posting advertisements and listings online is so easy that you need to be particularly vigilant in complying with fair housing law in all of your online advertising.
General Real Estate Careers
As a landlord advertising your rental property, it is your responsibility to ensure that you meet the standards set by the Fair Housing Act. The Civil Rights Act of 1968 (or the Fair Housing Act), including amendments to the act that were added in 1974 and 1988, is intended to give everyone, regardless of their race, color, religion, national origin, sex, handicap, or familial status equal access to available housing.
General Real Estate Careers
The management agreement is a pivotal document for your rental property because it spells out the obligations of the property management company to you, the client. Study the fine print; doing so is tedious but necessary in order to avoid unpleasant surprises. Even the management agreements available through state and national real estate organizations may contain clauses that are clearly one-sided in favor of the management company.
General Real Estate Careers
If you hire an individual to manage one or more properties for you, you become an employer (if you aren’t one already) and subject to a host of additional laws and accounting tasks, including the following:
Verifying employment eligibility: The Immigration Reform and Control Act (IRCA) requires that you verify any new employee’s identity and complete and submit a United States Citizen and Immigration Services (USCIS) Form I-9 Employment Eligibility Verification form.
General Real Estate Careers
As a landlord, you must make sure that you are in compliance with HCV rules. The Housing Choice Voucher (HCV) program, a major component of what is commonly known as Section 8, is the federal government’s primary program to assist very low income families, the elderly, and the disabled in renting decent, safe, and sanitary housing in the private market.
General Real Estate Careers
Many states don’t limit the amount that may be charged as a security deposit, which means that for legal purposes, landlords can charge as much as they want. Other states impose strict limits on security deposits — usually not more than twice the amount of the monthly rent.
Here are a few common strategies for deciding how much to charge for a security deposit:
Charge the maximum amount allowed or double the monthly rent.
General Real Estate Careers
As a landlord, you may be able to save yourself a lot of time getting up to speed on rent regulation statutes by first determining whether your property is subject to such regulation. The following information identifies areas in the United States where rents for certain properties are regulated and, if you’re operating in a regulated area, whether your property is exempt from such regulation.
General Real Estate Careers
Fire safety is a critical issue for rental owners. Fire can spread quickly and fully engulf an entire room, rental unit, or home in a matter of minutes. Fire also produces poisonous gases and smoke that are disorienting and deadly.
Fire inspections are conducted regularly in most areas; when your property is inspected, you will receive written notification of any deficiencies.
General Real Estate Careers
Rental units, indeed all living spaces, gradually wear out from human use. Carpeting becomes worn, floors get scuffed, paint fades, wallpaper peels, metal rusts, and wood gets warped. This kind of natural deterioration falls within the definition of ordinary wear and tear: deterioration that occurs over time through normal usage, not as a result of negligence, carelessness, or abuse.
General Real Estate Careers
If your resident doesn’t cure a violation or leave the property after receiving the appropriate legal notice, she isn’t automatically evicted. Instead, you, the landlord, must begin a formal eviction process by following these steps:
File the required forms with your local court and arrange to have the resident properly served with a summons and complaint.
General Real Estate Careers
Your rights as a landlord are based upon your rental contract and your state’s landlord-tenant laws. Your obligations, however, are primarily in the form of written laws or implied warranties and covenants (agreements).
Recognizing your duty to maintain habitable living conditions
According to the implied warranty of habitability, you must provide residents with dwellings that are fit to live in.
General Real Estate Careers
If you’re like most rental property owners and you’re acquiring property that’s already occupied, the residents are probably well aware of the pending ownership change, but they may be apprehensive when their rental unit changes ownership because of the uncertainty of change. So begin your relationship with your residents on a positive note.
General Real Estate Careers
Carefully screening applicants is essential to keep your rental units occupied with residents who pay on time, take care of the property, and get along with their neighbors. Careful screening can help you avoid legal issues, because you have less need to take legal action against good residents, and they’re less likely to file legal claims against you.
General Real Estate Careers
When you're a landlord, the seven protected classes that you should never use to discriminate against or in favor of people who are applying to rent from you are as follows:
Race
Color
National origin
Religion
Sex
Familial status
Handicap
Your state may extend protection to additional protected classes.
General Real Estate Careers
As a landlord, it’s good for you to realize that resident rights extend beyond the doors of their dwellings and beyond the confines of the rental property. You also need to respect and protect any personal data you collect about residents, avoid the temptation to contact your resident at work, and be very careful not to spread negative rumors about a resident.
General Real Estate Careers
Although the eviction process is rather straightforward in most areas, you still want to ensure you, as the landlord, don’t do anything to jeopardize the proceedings. There is no guarantee that the process will run smoothly, but if you keep the following in mind, you can alleviate many headaches:
Do use an attorney.
General Real Estate Careers
Being a landlord certainly sounds easy. All you have to do is line up responsible residents, maintain the property, and count your money as the rent rolls in, right? Actually, no. Owning and leasing residential real estate requires that you comply with a host of federal, state, and local laws. Certain residents may complicate your life by taking legal action against you or forcing you to take legal action against them.
General Real Estate Careers
When landlords fail to maintain habitable and nuisance-free rental properties and fail to remedy serious issues raised by residents, several consequences may follow. However, for you to be held legally liable and for residents to have a right to take recourse, the following five conditions must be met:
The issue makes the resident’s premise uninhabitable or a significant threat to the resident’s life, health, or safety.
General Real Estate Careers
As a landlord, you have certain legal and ethical obligations to your residents that are rarely spelled out in the rental contract, including the following:
Maintain habitable living conditions. According to the implied warranty of habitability, you must provide residents with dwellings that are fit for human occupancy.
General Real Estate Careers
Keeping good residents — those who pay their rent on time, take care of the property, and get along with their neighbors — is important as a landlord because the key to financial success in investing in real estate is stable, long-term tenants that stay and pay and don't bother their neighbors. To plug that gap, here are a few suggestions on how to improve retention of good residents:
Hire nice people.
Careful screening can help you avoid legal issues, because you have less need to take legal action against good residents, and they're less likely to file legal claims against you. To screen applicants, take the following steps:
Have the person complete and submit an application.
Order a credit and background report for the prospective resident.
General Real Estate Careers
Dispensing the keys is a very serious issue that has significant liability for landlords and managers. Not securing the rental unit’s extra keys can allow access to a resident’s rental unit, potentially leading to theft or crimes involving serious bodily injury.
If you fail to follow reasonable security measures or let keys fall into the wrong hands due to your carelessness, you could be held legally liable for any property loss, medical bills and other economic claims, such as pain and suffering or mental anguish.
General Real Estate Careers
As the landlord, you may be faced with some occupancy decisions. A resident may approach you and request the right to assign or sublet his interest in the rental unit.
If you allow an assignment, the new resident takes over all aspects of the original resident’s rental contract, and you can take legal action directly against the new resident if that ever becomes necessary.
General Real Estate Careers
Although you may perform most maintenance and repairs yourself or have maintenance personnel to handle most of these duties for you, some maintenance and repairs require the expertise of a licensed contractor, such as an electrician or plumber.
Whenever you hire someone to work for you, you’re taking on a legal risk.
General Real Estate Careers
The Federal Trade Commission (FTC) Act (also known as the Federal Truth in Advertising Law) directs all advertisers, including landlords, to meet specific requirements in all advertisements. Here are the conditions of the Act:
Deception: All advertisement must be truthful, fair, and free of misleading misrepresentations.
General Real Estate Careers
Lead paint and toxic mold are the two most prevalent and serious environmental hazards in residential housing. You need to be aware of your obligation to disclose any existence of lead paint or toxic mold in or on your rental property and your responsibilities in protecting residents from exposure to these toxic substances.
General Real Estate Careers
As the landlord, you may think that changing the terms of a rental contract is necessary. But, when can you do that? When you and your resident sign a rental contract, neither party can change the terms of the contract except in the following situations:
You and your resident have a month-to-month rental contract, and you’ve given the resident notice of the change as required by your state.
General Real Estate Careers
More than a dozen states have laws addressing restrictions on late charges for rent payments. As the landlord, be sure to check with your local NAA affiliate before establishing a late fee policy, and read your state statutes for late fee guidelines and restrictions. Generally speaking, though, implementing and enforcing a late charge policy makes sense, as long as it’s reasonable and relates to your actual out-of-pocket costs or expenses.
General Real Estate Careers
As a landlord, you’re probably going to encounter a time when a resident’s security deposit isn’t sufficient to cover the unpaid rent and the damage caused by the resident. Unless legally prohibited, allocate the deposit to first cover the damage and then cover the unpaid rent because it makes sense to apply the deposit to items that are more difficult to prove in court.
General Real Estate Careers
One of the most difficult challenges for a landlord is dealing with late rent payments. You don’t want to overreact and begin serving threatening legal rent-demand notices because doing so creates tension and hostility if the resident has a legitimate reason for the delay. Then again, late rent can be a very serious issue.
General Real Estate Careers
After you, as the landlord, have inspected the rental unit and determined the proper charges, you need to prepare the Security Deposit Itemization Form. Complete this form and give the vacating resident a check for any balance due within your state’s maximum time guidelines.
Most states allow rental property owners 14 to 30 days to complete the accounting, but several states have no specific legal deadline.
General Real Estate Careers
After reading the actual statute, you should have a better understanding of the Fair Housing Act, but what constitutes a violation of the law may surprise you, so make sure you have a firm understanding before advertising your property.
Whether you're the owner of a single rental unit or a large apartment complex, you're subject to fair housing laws whenever you advertise.
General Real Estate Careers
Cotenancy often results in unique situations for a landlord. For example, a resident’s inability to pay his share of the rent may result in late-, partial-, or nonpayment. Likewise if the cotenants have a dispute and one of them moves out, the remaining residents may have trouble paying the rent and finding a replacement roommate.
General Real Estate Careers
Despite impeccable resident screening, sometime in your career as a landlord, you’re likely to rent to people who cause trouble and disturb and possibly even harm their neighbors. As landlord, one of your responsibilities is to curb criminal behavior. If you fail to take action to stop criminal activity, other residents may try to hold you accountable for any damages.
General Real Estate Careers
Full compliance with fair housing laws doesn’t give landlords immunity from prosecution. Anyone can file a claim of housing discrimination against you, and you can be hauled into court over even frivolous lawsuits. The following information clarifies the legal process, so you know what to expect if someone files a housing discrimination claim against you.
General Real Estate Careers
Your rental application represents the initial step in the process of screening applicants for your rental property. It allows you, as the landlord, to gather essential information that’s valuable in the following three ways:
Provides information about the applicant
Gives you the information you need (name, Social Security number, and driver’s license number) to identify the applicant and dig deeper for information, such as credit and criminal history
Helps you assess the applicant’s honesty by giving you applicant-supplied information that you can check against facts you dig up later
Your rental application is a fill-in-the-blanks form that may include some or all of the following information:
Complete legal name
Social Security number (SSN) or individual tax identification number (ITIN)
Contact information (phone numbers and an email address)
Current and previous addresses
Date of birth
Banking information
Personal references
Vehicles
Pets (if any)
Other occupants of the apartment (of any age)
Driver’s license number
Recent employment history (unless your state prohibits discrimination based on source of income)
Current income
Names and contact information of previous landlords
Past evictions
Bankruptcies
Any information that may be discovered in a criminal history search, if you decide to do a search
Consider starting with a sample Rental Application and then tweak it, if necessary, to meet your needs.
General Real Estate Careers
As the owner and landlord of a rental property, you have a right to enter a resident’s apartment in certain situations, but whether, when, why, and how you exercise that right are crucial to keeping you out of legal trouble.
Build rapport with residents
Knowing and obeying the laws that govern the landlord-resident relationship are important.
General Real Estate Careers
As landlord, you should always screen the applicants for your rental property. This will help you determine if the applicant will be a desirable renter. As you screen residents, you basically have three choices:
Accept the applicant unconditionally
Accept the applicant with conditions
Reject the applicant
The first option is easy.
General Real Estate Careers
Landlords and property managers are required by law to provide and maintain habitable housing. In many areas of the country, maintaining habitable housing includes the responsibility to provide living areas that have none of the following critters:
Rats or mice: Rats and mice pose a health hazard to residents and are known to spread more than 35 diseases to humans.
General Real Estate Careers
Although not the most pleasant task for landlords, you should always make sure that you make efforts to resolve issues with residents. If you’re unable to reach an agreement by dealing directly with a resident, you have three ways to settle the disagreement:
Litigation involves filing a claim with a court to have a judge or jury determine whether a party’s legal right(s) have been violated by the failure of the other party to honor her obligation(s) as agreed to in a legally binding contract, such as a lease.
General Real Estate Careers
Even with an aggressive maintenance and repair program, landlords know that things break and wear out. To maintain resident satisfaction, you need a system that enables residents to submit maintenance requests and then respond to those requests effectively and in a timely manner.
Drafting a resident’s maintenance request form
Making sure that your residents have plenty of opportunities to let you know about any maintenance and repair needs they discover during their tenancy is good business.
General Real Estate Careers
The best way to avoid lawsuits and other problems with a property manager or other employee is to hire someone who is well qualified and has a clean record. These tips provide guidance on how to do your due diligence in screening candidates and choosing the best person for the job.
When advertising and screening candidates for any position, comply with all federal, state, and local antidiscrimination laws.
General Real Estate Careers
Landlords and residents often have many good reasons to terminate a lease. Maybe a resident is getting married, or moving out of town for word. In any case, you can terminate a lease in any of the following three ways:
Let the lease expire and don’t renew it.
Mutually agree with your resident to end the lease.
General Real Estate Careers
As a landlord, you must be persistent in your efforts to resolve issues with problematic residents. For serious or minor but persistent infractions, consider sending the resident a warning letter that includes the following:
The resident’s name, address, and unit number
The date
A clear statement of why you’re sending this letter
Any history of what’s been done or not done to resolve the issue up to this point
A clear statement of the desired outcome (for example, timely rent payments, assurances that all residents, including children will follow your rules, removing an old refrigerator from the porch, and so on)
A deadline for correcting the problem or dealing with the issue
A statement of the consequences of failing to address the issue to your satisfaction
Your contact information
Hand-deliver the warning letter or mail it at a US Post Office with a certificate of mailing, so you have proof that the letter was delivered.
General Real Estate Careers
As a landlord, you probably want to know specific steps you can take to secure your rental property and protect residents from crime. Here are several options for you to consider.
Turn to a crime prevention program
Although you can’t directly control the amount of crime in your rental property neighborhood, you can be proactive.
General Real Estate Careers
As a landlord of residential property, you probably don’t need to be very concerned about hazardous wastes. This is more of a concern for commercial property owners who rent to businesses that need to dispose of hazardous wastes, such as dry cleaners, auto repair shops, print shops, and manufacturing plants.
However, as a residential landlord, you still need to be concerned about residents pouring used car oil down sewers or drains, tossing old batteries in trash receptacles, or storing hazardous materials in their apartment that could leak or otherwise affect other residents.
General Real Estate Careers
As the landlord, you should always require that the rent be received in full in advance, on or before the first day of each month. This method is the most common, and many state laws require it unless the rental contract specifies otherwise.
That said, you and your resident can determine that the rent is due on any mutually agreeable date during the month.
General Real Estate Careers
Your rental contract should clearly indicate how residents should pay rent: by electronic payment, personal check, cashier’s check, money order, or cash. Regardless of the method, give your residents a receipt for all money received.
Accepting electronic payments
Technology is making the rent collection process much more efficient and timely.
General Real Estate Careers
As landlord, you probably know that you have responsibilities to not only protect residents from crime but also work with residents and local law enforcement personnel to identify and stop criminal activity occurring on your property. You may wonder what those responsibilities entail and what measures you must take to fulfill those responsibilities.
General Real Estate Careers
Once you begin to branch out as a landlord, taking care of your own property may no longer be an option. When using someone to handle your property management tasks, you have three options:
Negotiate a service contract with a property management firm. Contracting with a professional property management firm avoids most of the complexities of hiring an individual.
General Real Estate Careers
How you choose to structure your business as the landlord depends in part upon your willingness to share its future and yours with others. Forming a corporation is a fairly complex legal endeavor that involves the following steps:
Choose and register a name for your corporation that complies with state requirements.
General Real Estate Careers
Some unsavory landlords treat security deposits as another source of income that’s theirs for the taking. In the eyes of the law, however, a security deposit is actually the resident’s money that the landlord holds in trust for the duration of the lease. Most states restrict landlord use of security deposits to only three or four purposes, including the following:
Compensation for unpaid rent
To repair damage to the rental unit, excluding ordinary wear and tear, caused by the resident or members of his household or guests
To restore or replace property in the unit, such as furniture and furnishings or other items of personal property (including keys) according to terms of the lease, excluding ordinary wear and tear
To clean the rental unit, so it’s as clean as it was when the residents moved in
To recover any portion of the security deposit used by the resident as payment for the last month’s rent
Landlords can withhold from the security deposit only amounts that are reasonably necessary to remedy these damages.
General Real Estate Careers
The quality of your property management company directly affects the success of your real estate investments and your peace of mind. Visit the company’s office armed with the following questions:
Can you give me a list of exactly what management services you provide and a breakdown of management fees/costs?
Is your firm an Accredited Management Organization (AMO) recognized by IREM?
General Real Estate Careers
The first step in getting the right insurance is to understand the different types of insurance available for your rental property. Of course, building insurance is essential to protect against losses from fire, storms, burglary, vandalism, and so on, but you also want general liability insurance and other coverage to protect against losses from personal injury lawsuits and other misfortunes.
General Real Estate Careers
If you’re thinking about buying a rental property and becoming a landlord, you need to start by researching the property and its current residents, if any, and finding out exactly what’s included in the sale. During the due diligence period, which is when your escrow and purchase are pending, ask lots of questions.
General Real Estate Careers
As a landlord, you can choose to document your arrangement with renters using a lease or a rental agreement. You should know what each of these is and which is best for any given situation.
All enforceable contracts, including leases and rental agreements, have three requirements:
Offer: One party offers the other something in return for receiving something else.
General Real Estate Careers
When someone files a claim against a landlord for injuries, the courts look at the actions the landlord did or failed to do that allegedly caused the injuries. Courts often look for four things to determine whether and to what degree the landlord’s actions or inaction contributed to the damages suffered by the injured party.
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