Secrets and Lies (Part II)

New county-level price and inventory data. Plus, the exciting conclusion to our special two-part series on secrets and lies in which we reveal the genesis behind our state's disclosure laws and show you how courts will view your disclosure duties. 

Chapters

• 0:00 Introduction
• 0:58 Hawaiʻi Real Data Report
• 3:18 Focus Piece

Transcript

SECRETS AND LIES
PART II: NONDISCLOSURE
 
© 2023 by Hawaiʻi Association of REALTORS®. All rights reserved. 

1259 Aʻala Street, Suite 300
 Honolulu, HI 96817
 Phone: (808) 733-7060
 Email: har@Hawaiirealtors.com 

Introduction

Welcome to Hawaiʻi Real Estate, a podcast by the Hawaiʻi Association of REALTORS®. Our podcast airs the first Wednesday of each month. Each episode includes a Real Data Report, which describes Hawaiʻi pricing, inventory, and market conditions, and offers a special focus piece on a legal issue surrounding the buying, selling, renting, leasing, or managing of property in Hawaiʻi.

Today is Wednesday, May 3, 2023. Our focus piece for this episode concludes our special two-part series on mandatory disclosures. Secrets and Lies examines sellers who misrepresent, conceal, or withhold material information, and answers what powers a so-called as is agreement has to protect them and their sale.

In our last episode, we looked at the power of an as is agreement in cases of a seller’s material misrepresentation or concealment. In today’s episode we focus on seller nondisclosures.

First, however, we turn to our Hawaiʻi Real Data Report:


Hawaiʻi Real Data Report

Price

We have good news to report. Median home listing prices are up across the state. The monthly median listing price for a home in Hawaiʻi in March 2023 was $835,750 (up over the previous month by about 1%).
The individual counties also recorded higher monthly median home listing prices. The median listing price for a home in Hawaiʻi County in March 2023 was $628,000 (up over the previous month by 4.79%), the median listing price for a home in Kauai County was $1,636,250 (up 7.08%), the median listing price for a home in Maui County was $1,407,000 (up 0.86%), and the median listing price for a home in the City and County of Honolulu was $788,927 (up 0.98%). Like I said, good news.

Despite the positive monthly median home price data, however, longer-view economic data suggests that housing prices in the City and County of Honolulu may be facing a deepening downturn. Year-over-year change in monthly average listing price for the City and County of Honolulu in March 2023 was -10.3%, 3.14% lower than the previous month’s year-over-year change.

All other counties reported improved year-over-year average listing prices. Hawaiʻi County’s change in year-over-year average listing price improved from down 2.29% in February 2023 to up 7.62% for March 2023; Kauai County improved from down -2.45% in February 2023 to up 1.57% in March 2023; and Maui County improved from down -3.87% in February 2023 to -0.54% in March 2023.

Inventory

Inventory data seems to support the conclusion that the housing market in the City and County of Honolulu faces the strongest headwinds. Changes in active listing counts varies wildly across the counties, but the change year-over-year average listings for the City and County of Honolulu in March 2023 was the most striking. The average listing count for the City and County of Honolulu in March 2023 increased over the previous month by 12.11%, suggesting that demand for homes in the City and County of Honolulu is down.


Secrets and Lies
Part II: Nondisclosure

Preface

P&R Railroad truly was a behemoth, and during the Gilded Age it had an appetitive for expansion. This is a story of how a seldom-discussed event in U.S. history laid the groundwork for a massive legal realignment—one that governs residential real property transactions in Hawaiʻi to this day. 

Introduction

A young family—a mother, father, and son—gather in their living room one warm summer night to play the son’s favorite board game, Monopoly. Dusk is settling in, and the orange glow of the streetlights cast a soft hue through the family’s living room window, creating a peaceful atmosphere.

The father carefully unpacks the game’s contents from its box [Box Rummage Through]. He removes the board, money, and little tokens. He counts and then distributes starter money to each player [Money Bills Count] while the mother and son debate which properties are best to buy:

Son: I like the railroads! Reading Railroad, Pennsylvania Railroad, B&O, and Short Line.

Mom: I don’t think it’s a good idea to purchase the railroads. They may seem attractive, but they don’t generate as much income as other properties.

Son: But the railroads are really cool! And if someone lands on them, they have to pay you rent, no matter what. That’s better than owning one of the other properties where you have to buy a house or hotel to get paid any real money.

Mom: That may be true, but you have to remember that buying the railroads can be expensive. And if you spend all your money on them, you won’t have enough to buy other properties that will generate more income for you.

Son: But what if I want to use the railroads to trade with other players?

Mom: You can only trade a property that other people want.

Son: But railroads are super cool. Everyone wants them.

Do they?

The railroads in Monopoly are inspired by real railroads. Pennsylvania and Reading Railroads, for instance, are inspired by the Philadelphia and Reading Railroad Company. P&R Railroad was a behemoth.

It owned and operated rail lines that stretched across Pennsylvania, New Jersey, and parts of New York, connecting major cities including New York, Philadelphia, and Baltimore. It carried freight and passengers through the country’s most productive economic region, and its services fueled broad economic growth.

Investors of the time viewed P&R Railroad company stock as blue chip stock. They were wrong.

Philadelphia and Reading Railroad was the first domino in a long line of dominos that changed our legal landscape—and the rules governing real estate transactions across the country. 

For years, the rule was “buyer beware.” Our legal system viewed buyers and sellers as equally well situated to discover product defects. It was the buyer’s responsibility to inspect the property for defects before purchasing it.

If the buyer purchased a product with defects, they had no special authority to void the purchase contract. After all, as the law saw it, the buyer and seller will equally capable of identifying those defects. So why should the seller have any special obligation to identify those defects and report them to the buyer.

Philadelphia and Reading Railroad changed all that. This is the story of how a seldom discussed event in U.S. history laid the groundwork for a massive legal realignment—one that governs residential real property transactions in Hawaiʻi to this day.

Son: But what if I want to use the railroads to trade with other players?

Mom: You can only trade a property that other people want.
Son: But railroads are super cool. Everyone wants them.

[fade out] [train noise]

P&R’s Diversification and Expansion

P&R Railroad truly was a behemoth—and during the Gilded Age it had an appetite for expansion. The Civil War had just ended, and new technologies were propelling rapid economic growth. To meet growing demand for transportation services, P&R rapidly expanded.

One of the key factors driving P&R’s expansion was the company's focus on transporting coal, which was in high demand at the time. The company invested heavily in developing its coal transportation infrastructure, including building new rail lines, expanding its freight yards, and purchasing new locomotives and railcars.

As P&R expanded its coal transportation operations, it also began to diversify into other areas, such as passenger transportation and real estate development. The company invested heavily in building new passenger stations and terminals, and even began to develop residential communities around some of its stations.

These ambitious expansion plans required significant capital, and P&R began borrowing heavily. The company issued large amounts of debt, including bonds and notes to fund its expansion and meet its ongoing operating expenses.

P&R’s Economic Troubles

The expansion of rail lines throughout the United States played a critical role in the growth and development of the United States. Rail connected people and goods across the country and facilitated economic growth and prosperity.

But rail lines propagated too fast and too wide. Despite surging demand for rail services, the country faced a glut of rail capacity, which put downward pressure on rail prices, squeezing P&R Railroad’s profit margins.

At the same time, P&R faced increased competition from other railroads, which were expanding their operations and offering new services to customers. To remain competitive, P&R was forced to lower its freight and passenger fees, further injuring its financial position.

Making matters worse, cars and trucks were popularizing. As more people purchased and used cars and trucks for transportation, the demand for passenger and freight rail services declined. People were able to travel faster and more conveniently in their own vehicles, and businesses could transport goods more efficiently with trucks.
And with everyone traveling in gas-powered cars and trucks, the demand for coal fell. Because P&R was heavily invested in coal mining and transportation, its balance books took another powerful wallop.

This was also the time that our country experienced major population pattern shifts. It was the late 1800s, the dawn of the Industrial Age. Thousands of people moved from rural farming areas to urban city centers. Initially, this migration hyped demand for rail services, as rail was the major means for transporting people over our country’s wide expanse. But once people settled in dense city centers they found that they could travel most places by foot. They no longer needed or had the same desire to travel by rail. Demand for P&R Railroad’s passenger services declined.

Also leading to a decline in demand for rail were volatile macroeconomic conditions. The dawn of the Industrial Age, although generally a period of widespread economic activity, was punctuated by multiple economic downturns and financial panics. During the Panic of 1873, unhinged economic speculation and overextended credit led to a wave of bank failures, causing widespread unemployment, business failures, and declines in industrial production.

The massive decline in business and personal revenues led to corresponding declines in demand for passenger and freight rail services. But P&R Railroad had invested heavily in expanding its services in the period leading up to the Panic of 1873, and so by 1873 it found itself with burgeoning debt and dwindling revenue—it was hurtling towards economic collapse.

Neither the company nor the brokers that sold its stock disclosed the company’s doomed financial position. Some brokerage firms actually promoted the stock by publishing reports that failed to disclose important information about the company or downplayed the risks associated with investing in its securities, but neither the company nor the brokers that sold its stock lied about or actively concealed any important information about the company—they simply failed to disclose its material facts. 

The company and brokers selling its stock were relying on the principle of the legal principle caveat emptor (“buyer beware”). We learned in our previous episode that, under that legal maxim, buyers are responsible for identifying product defects. Buyers and sellers are equally capable of identifying a product defects, the courts reasoned, and so sellers should have no special duty to inspect what they’re selling or disclose its defects.

P&R Railroad and the brokers that sold its stock knew that buyers could not void their P&R Railroad stock purchases for a failure to disclose. As long as they did not unlevel the playing field by lying about or affirmatively concealing important information about the company, it was buyer beware.

And their strategy worked. Buyers continued to view the company as blue-chip stock—a reliably productive and safe investment. Orders to purchase the stock kept flowing—until 1893.

And then everything changed. The failure to disclose P&R Railroad’s ruinous financial condition to prospective purchases would color how courts viewed caveat emptor in the 20th century and inform legislatures enacting laws requiring seller duties to disclose material facts.

P&R Railroad’s Collapse

[Broadcast news short] News let out in February 1893 that P&R Railroad could no longer pay interest on its debt. Rightfully panicked investors [crowd studio feet stomp] raced to their brokers in droves and ordered sales [“Crowd Loud Scream Instigate Cheer Bar Fight” ] of what they had thought yesterday was blue-chip stock. The company’s financial position continued to deteriorate until May 1893 when it  declared bankruptcy, triggering a nation-wide financial panic.

The Panic of 1893 was one of the most severe financial panics in U.S. history. P&R Railroad’s collapsed in 1893 led to a wave of bank failures and a severe economic depression that lasted four years.

Interestingly, at the time P&R Railroad collapsed, there was no federal bankruptcy law for corporations. It was unclear at that time whether the U.S. Constitution’s bankruptcy provision applied to corporations, since corporations were created under state law, not federal law. So when P&R Railroad collapsed there was no federal framework to reduce the railroad’s debts, protect its creditors and investors, or offer a path for it to reemerge as a viable business.

But there was too much on the line. In addition to P&R Railroad’s collapse, other major railroads across the country were collapsing. The Wall Street firms that held massive debt and equity stakes in those firms needed a solution to protect their interests. So they developed an ingenious legal procedure: a de facto federal bankruptcy regime arising from ordinary state foreclosure law.

It worked like this. When a railroad like P&R Railroad failed, some of its major bond holders would ask a court in the state where the railroad filed for bankruptcy to open foreclosure proceedings against the railroad’s physical property that secured their bonds, but they would ask the court to delay the foreclosure sale until they had time to talk.

They would then form committees to negotiate with each other and with the railroad—working out the terms of the reorganization, like a trustee would work out the terms of a bankruptcy. They would then form one large committee, the reorganization committee, go back to the court, and ask for the court to order the foreclosure sale.

Of course there would be only one potential purchaser at the sale: the reorganization committee, which would purchase the failed railroad with all its old stock and bonds, plus a little bit of cash for all those investors who were not involved in the reorganization process—a process that came to be known as “railroad receivership.”
To many common investors, however, railroad receivership was effectively unavailable and—they argued—unfair. They were not in the room when the Wall Street firms and sophisticated bond holders decided how to distribute the railroad’s assets and debts. Their interests were not represented. It was not surprisingly , they argued, that they were left holding the bag.

It’s important here to remember how massive the railroads were. Railroads were our country’s first major corporations. Their value in the 1800s was universally understood, and investors would flock to invest.

P&R Railroad’s collapse in the late 1800s would be akin to a contemporary collapse of Google. Imagine everyone who’s invested in Google today learning that Google was insolvent and that it sold its shares knowing it was insolvent. You think the people who purchased its bankrupt shares would be angry that Google’s fatal financial position was not disclosed to them?

How would they feel upon being told that they could not void their stock purchase because, although Google had failed to disclose that it was selling bankrupt shares, it had not actually lied about or concealed that it was bankrupt?

Now imagine those investors being told that the lawyers and bankers that originally organized Google had gotten together and reorganized the company for their own benefit. I think they’d feel hoodwinked? Maybe cheated. Certainly wronged. 

That’s the situation P&R Railroad’s investors found themselves in when P&R went bankrupt. Neither P&R nor the brokers that sold its stock lied about or concealed any important information about the company, but neither did they disclose important information about its ruinous financial position. P&R Railroad’s debt-to-income ratio was not publicly available information. It was latent information that potential investors could not discover with due diligence. Because the defects in the business were not disclosed by the business or the brokers that sold its stock, investors were shocked to learn that they had purchased stock in an insolvent business.

And although they had been tricked into purchasing the stocked and excluded from the company’s reorganization process, they couldn’t sue to make themselves whole. Stock purchases at the time were governed by caveat emptor—and the purchases of P&R Railroad stock were not the result of any misrepresentation or concealment. There was no law that required disclosure, and so the investors had no right to void their purchases of bankrupt P&R stock. 

That would soon change—in a massive way. The railroad collapses of the late 1800s prompted state legislatures across the country—and eventually the U.S Congress—to break their long fidelity to caveat emptor and give buyers in certain consumer transactions the right to material disclosures.

Blue Sky and Federal Securities Laws

During the 20-year period between 1911 and 1931, 47 of the then 48 states enacted so-called blue-legislation. The legislation created licensing requirements for securities industry personnel and registration requirements for securities offerings. The new licensing and registration requirements were necessary to protect the public from, as one supporter put it, unsavory securities salesmen who would otherwise sell “building lots in the blue sky.”

State Blue Sky legislation was soon followed by federal legislation. Enacted in 1933, the federal Securities Act of 1933 requires public companies to file  registration statements with the Securities and Exchange Commission detailing certain important information about themselves. It also required public companies to provide buyers of their stock with a prospectus including important information about the itself, its business, and its financial performance.

Sales of public company stock would no longer be governed by caveat emptor. Because investors could not make informed decisions about the risks and benefits in purchasing public company stock, legislators reasoned, the legal regime for selling public company stock must be changed to require material disclosures.
It wasn’t long before courts and legislatures across the country began wondering if sellers of residential real estate should similarly be required to disclose material facts about their property. A twin housing and Baby Boom would train the attention of courts across the country on the question.

Real Estate Disclosure Regimes

It’s September 1945

Victorious American G.I.s are returning home from World War II. Having faced death thousands of miles away, they’re eager to reunite with their sweethearts and start families—massive families. A Baby Boom is born [babies crying].

The U.S. government enthusiastically supports their young citizens’ vigorous procreative efforts. A number of policies are enacted to support larger American families. The G.I. Bill, for instance, provides U.S. veterans with financial assistance for education and job training. With greater education and job training, veterans can earn more money and support larger families.

At the same time, major technological advances in manufacturing and construction make it easier, quicker, and cheaper to build new homes. So, like families, the housing sector experiences a boom.
[Contractors putting up a building]

Entire new suburban subdivisions spring up. Many Americans of the time buy newly constructed homes directly from their manufacturers. Should the courts infer that the home builders implicitly warranted that their homes they sold were habitable, like the courts infer that product manufacturers implicitly warrant that the products they manufacturer are fit for their ordinary commercial purpose?

Put it this way. If a buyer can sue a cowboy hat manufacturer because the hat it sold them made the hair on their head fall out, for instance, should a buyer be able to sue a home manufacturer because the home they sold them was not habitable? And if a home manufacturer implicitly warrants that the home they built is habitable, do they have a duty to disclose its material defects?

For years, the courts said, “no.” One court addressing there issue in 1957 found that:

"Although the doctrine of [c]aveat emptor, so far as personal property is concerned, is very nearly abolished, it still remains as a viable doctrine in full force in the law of real estate. Absent any covenant binding defendant to sell a well constructed house, plaintiffs cannot sue on an implied warranty . . . . That the rule of [c]aveat emptor applies, and that there are no implied warranties in the sale of real estate, has been criticized, especially when applied to the sale of new housing . . . . [But a] builder who sells a completed house is thereafter not liable to the purchaser for damages resulting from latent defects in the absence of express warranties in the deed or fraud or concealment."

In other words, if a home was a cowboy hat, it could burn its buyer’s hair, and a court would simply say “buyer beware.”

But this didn’t sit well with many sitting judges. “Buyer beware” was supposed to rest on the principle that buyers and sellers were equally capable of identifying a product’s defects. In the case of manufactured homes, though, how could a buyer identify a defect as readily as its manufacturer? Even if manufacturers didn’t implicitly warrant that the homes they sold were habitable, weren’t they bound by some equitable principle to disclose the hidden defects they created to potential buyers, like public companies were required to disclose their financial information to potential investors?

By the 1960s, courts began imputing warranties of habitability and workmanlike construction to newly-built homes. Caveat emptor in residential real estate transactions was being scratched away. It wasn’t the home buyer’s duty to detect defects in the home’s habitability or construction. If the home wasn’t built to code or if it threatened the buyer’s health or safety, the buyer could sue the manufacturer that sold it to them for breach of warranty.

Soon courts would recognize that all sellers of residential real property—not just manufacturers—all sellers of residential property had a duty to disclose known material defects in their property. The courts reasoned that sellers violated their duties to enter into a contract in good faith and to treat the other parties fairly by failing to disclose known material defects in their property to prospective purchasers.

The California Supreme Court in 1965 was the first court to find that sellers of residential real property—again, all sellers of residential real property—had a duty to disclose known material facts about their property.  The court held that:

"where the seller knows of facts materially affecting the value or desirability of property which are known or accessible only to him and also knows that such facts are not known to, or within reach of the diligent attention and observation of the buyer, the seller is under a duty to disclose them to the buyer."

Sound familiar? Hawaiʻi’s residential disclosure regime requires sellers to disclose all material facts that would be “expected to measurably affect the value” of the property “to a reasonable [purchaser of the property].” That sounds a lot like the California court’s holding that sellers must disclose all “facts materially affecting the value or desirability of property.” Also, under our disclosure regime, a seller need only disclose those material facts that are within their knowledge or control or that can be observed from a visible, accessible area. And that sounds a lot like the California court’s holding that sellers must disclose material facts that are “known or accessible” to them. Clearly, our disclosure regime was at least in part modeled after the California court’s decision and reasoning.

Look—here’s the truth. 90% of lawyers cockroach everything. They copy legal rules and reasoning developed by respected legal minds because it is easier and safer. (Not the writer of this podcast, obviously, he’s a renegade and an original.)

Interestingly, although part of our disclosure regime seems patterned off the 1965 California Supreme Court decision to require seller disclosures, another part of our disclosure regime seems patterned after laws enacted in other states to directly contravene a later California court decision requiring certain broker disclosures. In the seminal Eastern v. Strassburger decision of 1984, the California Court of Appeals held that brokers representing sellers have an:

"affirmative duty to conduct a reasonably competent and diligent inspection of the residential property listed for sale and to disclose to prospective purchasers all facts materially affecting the value or desirability of the property that such investigation would reveal."

Hawaiʻi enacted its residential property disclosure regime ten years later in part to cut off its court from adopting a similar rule. Rather than requiring brokers representing sellers to diligently inspect their client’s property and disclose material facts to potential buyers, as the California Court of Appeals did, the Hawaiʻi residential disclosure regime recognized that “[a]bsent supervening responsibilities imposed by the [s]tate, [a broker representing a seller can only work within the scope of authority given by [the seller]” and that “[f]idicuary duties of loyalty, fidelity, and obedience . . . require the agent not to undermine the position of [their client] by providing too much information [about the property being offered for sale].” In other words, our residential disclosure regime rejects Eastern v. Strassburger reasoning for requiring an agent representing a seller to inspect their client’s property for the buyer.

But it does require the agent to disclose material facts about the property that they know are inconsistent with or contradictory to the seller’s disclosure statement. Although our disclosure regime is concerned with a broker representing a selling exceeding the authority granted to them by the seller or breaching a fiduciary duty to the seller, it also recognizes that a seller cannot misstate or fail to disclose a material fact about their property. A broker does not exceed the authority granted to them or violate any fiduciary duty, therefore, by correcting the seller’s incomplete or inaccurate disclosure statement.

Our disclosure regime is basically trying to avoid the situation our country found itself in when stockbrokers of the late 1800s were selling P&R Railroad stock based on pamphlets that—although they did not lie about or conceal any material information about the company—certainly failed to correct previous material misstatements about the company and certainly provided only a partial picture of the company. Courts since then have held that, if a party volunteers information about a product, that information must be full and accurate.

The California Supreme Court in 1944, for instance, recognized that: 
Even though one is under no obligation to speak as to a matter, if he undertakes to do so, either voluntarily or in response to inquiries, he is bound not only to state truly what he tells but also not to suppress or conceal any facts within his knowledge which will materially qualify those stated. If he speaks at all he must make a full and fair disclosure....”

And so, if the seller’s disclosure statement fails to make a full and accurate disclosure of material facts, it falls to the party representing the seller in the transaction to use their knowledge to correct the seller’s disclosure statement. Failure to do so would violate the implied duty of good faith and fair dealing by failing to meet the buyer’s justified expectations to have a full and honest disclosure of all material facts.

But how does that work out in practice? A broker representing in Hawaiʻi does not have the obligation to conduct a reasonable inspection of the seller’s property, but they do have the obligation to use information they already know about the property to correct an inaccurate or an incomplete disclosure statement. So does the broker representing the seller have an obligation to review the seller’s disclosure statement before its sent to the buyer?

I recently sat down with Chris St. Sure at Goodsill Anderson Quinn & Stifel to gain his perspective:

"Typically, the seller. The seller’s going to be responsible for the disclosure statement. But the agent, 508D, at least in my reading of it, does put some burden on the seller’s agent to review the disclosure statement."

"And what we’re seeing now is sellers agents being dragged into fights. Because, from a plaintiff’s attorney perspective, the looking at trying to bring in more people, more money, to chip in to the resolutions, right?"

"And, umm, there’s some argument to be made, that if a seller’s agent knows a seller’s disclosure statement is incorrect, or they have information to the contrary, umm, they have to speak up."
 
"And, and, and, in the case, in a recent case I dealt with, seller’s agent did have knowledge, or at least the brokerage firm had knowledge of an HOA and certain maintenance fees increases coming up from prior transactions."

"So that’s kinda a scary thought—is, oh, because you know, brokers deal with a lot of transactions, and various different HOAs and condominiums, and whether or not that knowledge, prior transactions, can be, you know, or should be disclosed, it’s a lot to think about from a seller’s agent perspective."

And he’s right, section 508D-7 of the Hawaiʻi Revised Statutes sets it in black and white. If the seller’s agent is or becomes aware of any material facts inconsistent with or contradictory to the disclosure statement, the seller’s agent shall disclose those facts to the seller, the buyer, and the buyer’s agent. You can blame P&R Railroad, in part, for this obligation.

Many brokers selling its stock in the late 1800s knew that it was in dire financial straits but did not communicate that information to potential purchasers of its stock. Now brokers in certain other industries, like brokers selling residential real property in Hawaiʻi, must disclose to potential buyers material information that they know about the seller’s property that the seller did not fully or accurately disclose.

An “as is” agreement cannot waive, modify, or excuse a seller’s duty to disclose material facts about their property or their broker’s duty to correct what they know to be an incomplete or an inaccurate disclosure statement. Everything comes down to good faith and fairness. We no longer live in a “buyer beware” world. Ever since the railroad bankruptcies of the late 1800s, courts have been less and less willing to forgive sellers or their brokers for failing to disclose material facts. 

Sellers of residential real property in Hawaiʻi who fail to disclose all material facts about their property breach their implied duty to act fairly towards their prospective buyer. Sellers of residential real property in Hawaiʻi must disclose all material facts about their property that are within their knowledge, that are visible from an accessible area, or that are expressly required by statute. If a broker representing a seller in Hawaiʻi knows that the disclosure statement the buyer received was incomplete or inaccurate, the broker must correct that disclosure statement.

Conclusion

And that’s our episode. Remember, we release new episodes the first Wednesday of each month. If you like our podcast, please remember to like and subscribe. A hui hou!