The opinion
NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
14-P-1734 Appeals Court
BOSTON REDEVELOPMENT AUTHORITY vs. JEFFREY PHAM & another.1
No. 14-P-1734.
Suffolk. October 1, 2015. - December 9, 2015.
Present: Kafker, C.J., Katzmann, & Rubin, JJ.
Housing. Redevelopment Authority. Deed. Real Property, Deed,
Condominium. Condominiums, By-laws, Master deed.
Practice, Civil, Findings by judge, Attorney's fees.
Civil action commenced in the Superior Court Department on
December 1, 2010.
The case was heard by Bonnie H. MacLeod, J., and a motion
for attorney's fees and costs was heard by her.
Edward S. Englander (Shannon F. Slaughter with him) for the
plaintiff.
James A. Schuh for Jeffrey Pham.
KAFKER, C.J. In this case we must decide whether Jeffrey
Pham violated affordable housing restrictions established by the
Boston Redevelopment Authority (BRA) that (1) required Pham to
1
Andrew Carpentier. A stipulation of dismissal as to
Carpentier was entered in the Superior Court on May 31, 2011.
2
maintain his condominium unit as his principal residence, and
(2) prohibited him from leasing his unit for business or
investment purposes. As we discern no error in the Superior
Court judge's determination that Pham continued to occupy his
condominium unit as his principal residence despite his
extensive work-related travel, and that he did not violate any
deed or other covenants when he took in a succession of
roommates to share the space and defray the carrying costs of
the unit, we affirm.
1. Background.2 a. 2007 purchase of affordable housing
unit. Having won a housing lottery and been approved by the
BRA, on June 1, 2007, Jeffrey Pham purchased unit 413, a two-
bedroom affordable condominium unit at 2400 Beacon Street in the
Chestnut Hill section of Boston (unit or premises). His
application stated that his sister, a college student, would
live in the unit with him. Pham signed a number of documents
relative to his purchase of the unit, including the unit deed, a
deed rider covenant for affordable housing (covenant), a note,
and a mortgage identifying the BRA as the mortgagee. In
addition, recorded with the unit deed is an affirmation signed
2
The facts underlying this case were developed in a jury-
waived trial. The BRA called three witnesses: Andrea Laing,
the Assistant Director of Affordable Housing Compliance at the
BRA during the relevant time period; Carpentier, Pham's last
roommate; and Pham. Pham testified on his own behalf and did
not call any other witnesses. Twenty-nine exhibits were
admitted in evidence.
3
by Pham accepting the unit deed and agreeing to its provisions
along with the provisions of the master deed and declaration of
trust,3 including the by-laws and rules and regulations adopted
by the trustees of the condominium. Both as part of his
application and yearly thereafter, Pham executed an affidavit
averring that he occupied the unit as his principal residence.
The purpose of the covenant, as stated in its preliminary
statement, "is to provide a uniform plan for administration and
enforcement of covenants and restrictions imposed upon real
property by the City of Boston and the Boston Redevelopment
Authority . . . [to] regulat[e] the development of real property
for housing for persons of moderate and middle income." The
covenant is imposed "to mitigate the impacts of market rate
housing on the supply and costs of housing for moderate and
middle income households." More simply, "With this help, many
families who could not afford to purchase a home in the private
market will be able to own their own home."
The covenant constitutes a part of the consideration paid
for affordable housing properties. The covenant defines
"Premises" as "the real property conveyed by or described in the
Deed . . . ." Section 4 of the covenant provides:
3
The declaration of trust establishes an organization of
unit owners to hold, exercise, manage, and administer the common
elements of the condominium for the benefit of the unit owners
pursuant to G. L. c. 183A.
4
"[t]he Owner shall occupy the Premises as his . . .
principal residence. Notwithstanding the foregoing, Owner
may lease the Premises only upon receiving prior written
approval from the [BRA], provided that the rent paid by the
lessee is not greater than one hundred fifteen percent
(115%) of the Owner's then current monthly housing costs."
The mortgage itself does not contain any restrictions on
rentals or roommates, but does provide that it secures the
repayment of the indebtedness and the covenants and restrictions
set forth in the note, the mortgage, "and in all other documents
now or hereafter executed by the Mortgagor incident to
Mortgagor's purchase of the Premises . . . ." The BRA points to
two of those documents, the master deed and the by-laws of the
condominium trust, as prohibiting Pham's conduct.4
Section 7 of the master deed is entitled "Use of Units and
Common Elements." Section 7A of the master deed first restricts
the general use of units to residential purposes only, "with no
more than two (2) unrelated persons per bedroom . . . ."
Section 7B of the master deed provides:
"It is the Intent of this Master Deed that the Units
shall be owner-occupied, and that any owner-occupant
4
Pham filed a motion in limine seeking to prevent the BRA
from relying on anything other than the covenant as no other
document was brought to Pham's attention by the BRA's presuit
communications, complaint, or discovery. The record does not
reflect the action the judge took on the motion except that her
decision does discuss the master deed and declaration of trust,
indicating that she at least implicitly denied the motion. Pham
does not specifically argue that the judge erred in denying the
motion. Given that the documents are incorporated by reference
in the documents which were cited in the briefs on appeal, we
discern no error in the judge's consideration of them.
5
requirements of the Affordable Housing Agreement and the
LDA be strictly enforced.[5] Therefore, the leasing of
Units to others as a regular practice for business,
speculative, investment or other similar purpose shall not
be permitted. Additionally, and notwithstanding any other
provision herein to the contrary, no Affordable Unit may be
occupied by anyone other than its owner or leased to anyone
without the express written consent in advance of the
municipality as set forth in the LDA. To meet special
situations and to avoid undue hardship in particular
instances, the Trustees may grant permission to a Unit
Owner to lease the Unit Owner's Unit to a specified lessee
for a period of not less than twelve consecutive months and
not more than eighteen consecutive months."
Section 18A of the by-laws of the trust addresses rentals
permitted by § 7B of the master deed. It provides that any
lease of the premises shall be in writing "and apply to the
entire Unit and not merely a portion thereof" (emphasis added).
b. Pham's use of unit. Pham admitted at trial that after
his sister moved out in late 2009, he had a succession of
roommates who contributed to the payment of his housing costs.
He allowed the roommates to use the master bedroom and he used
the smaller bedroom vacated by his sister. Pham shared the rest
of the unit with the roommates. He had no formal lease or
contract arrangement with them.
The record reveals that Pham's total monthly housing costs
were approximately $3,000 and the most any roommate paid was
$1,500 per month. There is no suggestion in the record that
5
The master deed defines LDA as the "Amended and Restated
Land Disposition Agreement." Neither the LDA nor the affordable
housing agreement are contained in the record.
6
Pham received money approaching or exceeding his total housing
costs. His last roommate departed in May, 2011.
It is uncontested that Pham traveled extensively for his
job. He conceded he frequently was absent from the unit, even
for weeks at a time. He traveled to South Carolina, where the
business he worked for was based, and he also traveled abroad
for work. In addition, he spent time in New Jersey where his
girlfriend, now wife, lived. He continued to use the unit,
however, as his home base. He kept the majority of his
"valuable possessions" in the unit. The master bedroom and
common living areas remained furnished with his furniture. The
utilities remained in his name and he paid those bills. He
identified the unit as his address for tax purposes.
Furthermore, during the period in question, he did not rent or
buy a residence in either South Carolina or New Jersey. He
testified he frequently stayed with his boss when in South
Carolina.
c. BRA investigation. The first complaints claiming that
Pham was not occupying his unit came to the BRA from a trustee
of the condominium in or about April, 2010. In the course of
correspondence over the ensuing weeks, the trustee alleged that
Pham had been renting out his unit for over a year and, as a
trustee, had missed all but one trustee meeting. Following some
communications with Pham, the BRA informed him by letter on
7
August 4, 2010, that he was in violation of the covenant and
requested a meeting with him, apparently as part of its
investigation. By letter dated October 21, 2010, the BRA
informed Pham that its investigation had been completed and that
it had concluded that he was "in violation of Section 4 of the
Covenant because he [did] not occupy the Unit and he ha[d]
leased the Unit without the prior written approval of the BRA."
The BRA indicated it would bring legal action against him if he
did not, among other things, (i) provide proof that his current
tenant or roommate no longer resides at the premises; (ii)
account for and present a plan to pay to the BRA any monies
received from roommates; and (iii) arrange to sell the unit to
another qualified buyer within six months. Pham did not comply
with the BRA's requests.
On December 1, 2010, the BRA filed a complaint in the
Superior Court alleging that Pham violated the covenant and his
mortgage by (i) failing to occupy the premises as his principal
residence, and (ii) renting the premises without the permission
of the BRA. The BRA sought an accounting in addition to an
order instructing Pham to convey the unit to a qualifying
affordable housing buyer.
8
The judge concluded that Pham continued to occupy the unit
as his principal residence.6 With regard to renting the unit,
the judge found that the covenant and other documents do not
clearly prohibit him from having a roommate, even one who
contributes to the monthly housing costs, without the BRA's
approval. The judge dismissed the BRA's complaint and pursuant
to the covenant, awarded Pham attorney's fees. The BRA appeals
and Pham cross appeals, claiming that the judge should have
awarded his "actual" fees, without reduction.
2. Discussion. Principles of deed and contract
interpretation guide our discussion of the issues. In
interpreting a deed, as with any contract, we "must construe all
words that are plain and free from ambiguity according to their
usual and ordinary sense." Suffolk Const. Co. v. Lanco
Scaffolding Co., 47 Mass. App. Ct. 726, 729 (1999). Deed
restrictions are, however, "to be strictly construed against the
party seeking to enforce" them. Walker v. Gross, 362 Mass. 703,
706 (1972). See Kline v. Shearwater Assn., Inc., 63 Mass. App.
Ct. 825, 830-831 (2005). "Where a person's right to use his or
her own property is involved, any ambiguity in an asserted
restriction . . . should be construed in favor of the freedom of
the property from that restriction." Johnson v. Keith, 368
6
The judge also pointed to the fact that the BRA served the
complaint on Pham at the unit.
9
Mass. 316, 320 (1975). This is also consistent with the general
rule that ambiguous contractual language is construed against
its author. See Beatty v. NP Corp., 31 Mass. App. Ct. 606, 612
(1991). Finally, "[w]ords that are clear and unambiguous, by
themselves, may be ambiguous when read in the context of the
entire [instrument], or as applied to the subject matter."
Jefferson Ins. Co. of N.Y. v. Holyoke, 23 Mass. App. Ct. 472,
475 (1987).
a. Occupancy as principal residence. Section 4 of the
covenant unambiguously requires Pham to occupy the unit as his
principal residence. Whether Pham occupied the unit as his
principal residence is a mixed question of law and fact.
Shepard v. Finance Assocs. of Auburn, Inc., 366 Mass. 182, 189
(1974). As the party seeking to enforce the principal residence
requirement, the burden was on the BRA to prove that Pham failed
to occupy the unit as his principal residence, and we review the
judge's findings for clear error. See Dotson v. Commissioner of
Rev., 82 Mass. App. Ct. 378, 384 (2012) (burden of proof of
change of domicil falls on party asserting change).
The phrase "occupy as principal residence" is not defined
in the covenant or elsewhere. The BRA points to application
materials where a preference is given to "Boston Residents,"
defined as persons who "normally eat[], sleep[] and maintain
[their] normal personal and household effects" in Boston, and
10
suggests that those same parameters and other parameters, such
as frequency of physical presence, govern the analysis. The
BRA's main contention is that Pham was not physically present in
the unit enough to satisfy the occupancy requirement.
The Supreme Judicial Court has noted that "[t]he main
lesson to be drawn from our cases interpreting the meaning of
the word 'residence' is that it is a word 'of flexible
meaning.'" Shepard, 366 Mass. at 190. "Residence is a word of
varied meanings, ranging from domicil[7] down to personal
presence with some slight degree of permanence." Rummel v.
Peters, 314 Mass. 504, 511 (1943). While it was certainly open
to the BRA to draft the covenant in such a way as to impose a
minimum number of days per week, month, or year of physical
presence to the occupancy requirement, it did not do so.8 The
judge, therefore, reasonably considered multiple factors in
determining whether Pham maintained the unit as his principal
residence, including his living arrangements elsewhere. Those
factors recounted by the judge in her findings establish that
7
"Domicil has been defined as 'the place of one's actual
residence with intention to remain permanently or for an
indefinite time and without any certain purpose to return to a
former place of abode.'" Caffyn v. Caffyn, 441 Mass. 487, 492
(2004), quoting from Fiorentino v. Probate Ct., 365 Mass. 13, 17
n.7 (1974).
8
The BRA representative testified that there was no rule
regarding the number of days Pham had to be physically present
in the unit, as long as it remained his primary residence.
11
the unit was Pham's principal residence as he neither leased nor
owned property elsewhere, and despite his extensive travel
necessitated by his employment, he continued to use the unit as
his home base. There was testimony that Pham retained a room in
the unit and was physically present in the unit one to two weeks
per month. He maintained his valuable personal possessions
there. He identified the unit as his address for tax and other
official purposes and the BRA served him there. The utilities
remained in his name and he paid the bills.9
We discern no intention reflected in the BRA documents to
prevent purchasers of affordable housing units from pursuing or
taking jobs that require frequent travel, provided they maintain
the affordable housing unit as their home base. Indeed, any
such restrictions on employment appear inconsistent with the
goals of assisting persons of moderate and middle income to
thrive in difficult economic circumstances as reflected in the
covenant. While Pham's frequent absences required careful
inquiry on the primary residence question, the judge undertook
such an inquiry and reasonably concluded that Pham's principal
9
The judge was not required to draw an adverse inference
from Pham's initial failure to change his license and car
registration to his Boston address from his parents' home in
Northborough, where he often garaged his car. There was no
indication that he made any other use of his parents' home and
the BRA does not suggest he resided there. When the BRA brought
the oversight to his attention, he changed both and by the time
of trial, the judge noted that his driver's license and car
registration bore the address of the unit.
12
residence remained unchanged, despite the travel necessitated by
his employment and desire to see his out-of-town girlfriend, who
eventually became his wife.
In sum, in these circumstances, we discern no error in the
judge's determination that Pham did in fact occupy the unit as
his principal residence throughout the period in question.10
b. Roommates. We turn next to the question whether Pham
violated provisions in the covenant, master deed, and trust by-
laws when he replaced his sister with roommates who contributed
as much as $1,500 toward his $3,000 monthly housing costs in
return for their use of the master bedroom suite and shared
space. The express intention of the documents is to promote and
require owner occupation of the unit as a personal residence.
See § 4 of the covenant ("The owner shall occupy the Premises");
§§ 7A and 7B of the master deed ("The units are to be used only
for residential purposes by the Unit Owner and members of the
Unit Owner's household unit"; "the Units shall be owner-
occupied"). Consistent with this purpose, the documents
together explicitly prohibit the unit owner's right to lease the
unit for business, speculative, investment, or other purposes.
10
The BRA contends that the judge erred in declining to
grant its motion for relief from judgment because it learned
that after trial, in February of 2014, Pham purchased a home
with his wife in New Jersey. The judge correctly denied the
motion as involving posttrial events, and "thus not relevant in
any way." The record does reflect that Pham sold the unit in
due course after purchasing the New Jersey home.
13
See § 7B of the master deed ("the leasing of Units to others as
a regular practice for business, speculative, investment or
other similar purpose shall not be permitted"). All these
prohibitions, and the associated remedies, are directed at the
leasing of the entire unit. See § 18A of the by-laws ("To the
extent that a Unit Owner is permitted to lease its Unit as set
forth in Section 7.B of the Master Deed, any lease or rental
agreement . . . shall . . . apply to the entire Unit and not
merely a portion thereof); § 20(c) of the covenant (for
prohibited leases, the BRA shall be entitled to "money damages
for charges in excess of maximum rents"). As we have previously
concluded, Pham is an owner occupier of the unit for residential
purposes. He has not leased the entire unit for business,
speculative, or investment purposes. Rather he has brought in
roommates who pay a portion of his carrying costs of the unit.
None of the documents expressly prohibit subleases,
roommates, lodgers, or boarders as they could have done.11,12 At
11
The concepts of lodger or licensee may more aptly
describe the relationship between Pham and his roommates than
landlord-tenant. See Warshaw, Massachusetts Landlord-Tenant Law
§ 1.9, at 18 n.31 (2d ed. 2001), quoting from Hall,
Massachusetts Landlord-Tenant Law § 3, at 3 (1949) (if party
does not "have exclusive possession of premises against all the
world including owner," there is no tenancy but rather party is
licensee). We noted in Hall v. Zoning Bd. of Appeals of
Edgartown, 28 Mass. App. Ct. 249, 254 (1990), quoting from
Webster's Third New Intl. Dictionary 1329 (1971), that the
dictionary definition of lodger is "one who by agreement with
the owner of housing accommodations acquires no property,
14
oral argument, the BRA conceded that roommates are not
prohibited nor do they require prior approval as long as they
are family members or close personal friends. The BRA rather
contends that having paid roommates who are not family members
or friends transforms the use of the unit into a "business" or
other use prohibited by the master deed. We disagree. As the
judge found, Pham is using the unit as his primary residence and
accepting roommates to defray his carrying costs. Section 7A of
the master deed also specifically provides that unrelated
persons may occupy the unit. The covenant contains a broad
definition of household: "all persons who reside or intend to
reside together at the Premises." Neither the master deed nor
the covenant prohibits unrelated or unfamiliar persons from
living together, nor do they require BRA approval of household
members. We therefore discern no support for the BRA's
interest, or possession therein but only the right in accordance
with the agreement to live in and occupy a room or other
designated portion therein that still remains in the owner's
legal possession." The lodger has no interest in the real
property but only a contractual relationship with the owner.
See ibid. A roommate, most commonly, is a mere licensee.
Warshaw, Massachusetts Landlord-Tenant Law § 1.9[C].
12
In contrast, a sample Boston Housing Authority lease
specifically provides that a resident "agrees not to assign this
lease, not to sublet or transfer possession of the Apartment,
not to take in boarders or lodgers and not to use or permit the
use of the Apartment for any purpose other than as a private
dwelling solely for Resident and the individuals specifically
listed on this lease or listed on a subsequent written Lease
Addendum." Daher & Chopp, Landlord and Tenant Law § 22.18, at
143 (3d ed. 2001).
15
assertion that only family members or persons with close
personal relationships may live as a roommate with the owner
without transforming it into a business investment.
The fact that a roommate pays a portion of the unit owner's
carrying costs is a factor to consider in our legal analysis of
the restrictions and prohibitions in the different documents but
it is not dispositive. As the judge points out, Pham's housing
costs exceeded fifty percent of even his pretax monthly income.
It would have been difficult indeed for Pham to maintain his
personal housing costs without the assistance of first his
parents on behalf of his sister (something that the BRA
acknowledges in its brief on appeal) and then the roommates who
shared the unit with him. The controlling documents do not
prohibit Pham from making the personal financial decision to
share his housing unit with a roommate who is not a family
member or friend in order to reduce his costs and make the unit
more affordable. If the BRA intended to preclude such a
decision, with the resulting financial pressures it thereby
places on the moderate and middle income owner occupiers it
intends to serve, it must do so unambiguously. Compare Boston
Housing Authority lease provision quoted in note 12, supra.
In so concluding, we acknowledge the sentence in § 7B of
the master deed, which states, "no Affordable Unit may be
occupied by anyone other than its owner or leased to anyone
16
without the express written consent in advance of the
municipality as set forth in the LDA" (emphasis added). This
single sentence regarding occupation has not been a focal point
of the litigation. The BRA never identified this language in
the master deed when it notified Pham that he was in violation
of the covenant, nor did it identify this language in the
complaint as purporting to require prior BRA approval of
roommates. The sentence, and the potentially broad controlling
sweep of its restriction regarding occupation of the unit, has
not been repeated elsewhere in the extensive documentation
governing the unit. The absence of such language from the
covenant, the principal document governing the affordable
housing aspect of the transaction, is conspicuous. There are
also no specific financial remedies for unauthorized roommates,
lodgers, boarders, or others sharing the unit and its expenses
with the owner.
Indeed, situated as it is between provisions requiring
owner occupation and controlling rental of the entire unit, it
remains unclear to us whether this sentence in § 7B requires
written consent for a person to occupy a room and shared space
in the unit when the owner also continues to occupy the unit.
See Jefferson Ins. Co., 23 Mass. App. Ct. at 475 (ambiguity may
arise from context in which relevant language appears). In
construing substantially similar lease language prohibiting a
17
tenant from allowing any other person to occupy the leased
premises, the Supreme Judicial Court concluded that a lodger
taken in by the tenant to occupy one of the rooms for a fee, did
not "occupy" the premises in violation of the covenant and such
an arrangement was "not a leasing or underletting" of the
premises." Peaks v. Cobb, 197 Mass. 554, 555 (1908).13 While
there may very well be affordable housing goals served by
restricting and requiring approval of anyone who occupies an
affordable housing unit with an owner, the BRA must incorporate
clearer language to do so. Compare Boston Housing Authority
lease provision quoted in note 12, supra. Read as a whole, the
condominium documents at issue are at least ambiguous with
regard to whether Pham required the BRA's approval to share his
unit with a roommate. See Jefferson Ins. Co., supra.
For all of the foregoing reasons, therefore, we agree with
the judge that in this regard, the clause is at least ambiguous
and should not be construed against Pham.
c. Attorney's fees. We turn finally to the issue of
attorney's fees. Pham was awarded $92,720.95 on his initial
13
The lease covenant provided that the tenant could not
"lease, nor underlet, nor permit any other person or persons to
occupy . . . [the premises]" without the approval of the
lessor. Peaks, 197 Mass. at 554-555.
18
application for attorney's fees and costs14 and $4,367.60 on his
supplemental application for attorney's fees and costs. The
judge denied Pham's second supplemental application for
additional fees and costs of $2,232.50, stating, "the Court
believes that the prior fees and costs allowed represent
reasonable compensation for all pre-appeal services." On
appeal, Pham argues that the judge erred in denying his second
supplemental application because the covenant entitles a
prevailing party to all the attorney's fees he incurred.15 We
disagree.
The covenant provides that "[i]f any action is brought to
enforce this Covenant, the prevailing party shall be entitled to
actual attorneys [sic] fees and other costs of bringing the
action, in addition to any other relief or remedy to which such
party may be entitled." Relying on Carter v. Warren Five Cents
Sav. Bank, 409 Mass. 73 (1991), Pham argues that because the
covenant provides for the prevailing party to be awarded
"actual" attorney's fees, he was entitled to all legal charges
14
Pham requested $93,296.60 in his initial application for
attorney's fees and costs. The judge removed all charges for
"checking the docket" and a cost for meals, thereby reducing the
award by $575.65.
15
In his brief, Pham also appeals the judge's reduction of
his initial application for attorney's fees and costs. However,
in his supplemental application for attorney's fees and costs,
he noted, "Mr. Pham accepts the decision of the Court not to
award him legal fees for checking this Court's docket. . . ."
This issue is therefore waived and we decline to address it.
19
incurred rather than the amount the judged deemed reasonable.
We conclude that Carter is distinguishable and does not control
the attorney's fees request at issue here.
Carter involved a "golden parachute" provision in an
executive compensation agreement. Id. at 76, 80. The agreement
included a bargained-for provision requiring the bank to pay
"any legal expenses incurred" by the plaintiff in enforcing his
rights under the agreement. Id. at 80. The Supreme Judicial
Court interpreted this golden parachute provision to limit the
bank's challenge of attorney's fees to either a claim that the
charges "were not incurred in enforcing [the plaintiff's] rights
or . . . that the charges were above the highest level of a
reasonable fee for those services." Ibid.
As this court has previously explained, Carter represents
"an exceptional situation." Citizens Bank of Mass. v. Travers,
69 Mass. App. Ct. 174, 176 (2007). The provision in Carter,
requiring the bank to pay "any legal expenses incurred" by the
plaintiff, was part of an executive compensation agreement. It
was drafted by the bank for the benefit of the plaintiff and
inserted to entice the plaintiff to remain employed with the
bank "in the face of the uncertain consequences of a possible
merger of the employer-bank into another entity." Id. at 176,
quoting from Carter, supra at 76. In contrast, in Citizens
Bank, the attorney's fees provision requiring the borrower to
20
pay "all" attorney's fees and costs associated with collection
was part of a bank note deemed to be "a contract of adhesion,
drawn . . . entirely in the bank's favor." Id. at 177. The
Citizens Bank court declined to apply Carter and instead
considered it more appropriate to apply the "usual rule"
limiting such a borrower's obligation to an amount that is "fair
and reasonable." Ibid., quoting from Trustees of Tufts College
v. Ramsdell, 28 Mass. App. Ct. 584, 585 (1990) (interpreting
note obligating student to repay "all attorneys' fees" as
limited to attorney's fees "found to be fair and reasonable").
Here, the attorney's fees provision at issue is part of an
affordable housing covenant, drafted by the BRA, in favor of the
BRA and its program objectives, and we too consider it
appropriate to limit an award of attorney's fees to an amount
that is fair and reasonable. See Citizens Bank, supra at 177.
It is Citizens Bank and not Carter that governs the attorney's
fee request here. Therefore, the judge did not err in limiting
Pham's legal fees to "reasonable compensation for all pre-appeal
services." The order denying Pham's second supplemental
application for attorney's fees and costs is affirmed.16
16
As the instant appeal was not frivolous, we decline
Pham's request that this court impose double costs on the BRA.
Pham is, however, entitled to his appellate attorney's fees and
costs. He shall have fourteen days from the date of the
rescript to submit to this court an application for appellate
attorney's fees and costs, together with supporting
21
3. Conclusion. The judgment is affirmed. The order
denying the BRA's motion to vacate judgment is affirmed. The
order denying Pham's second supplemental application for
attorney's fees and costs is affirmed.
So ordered.
documentation. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004).
The BRA shall have fourteen days thereafter to respond.