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14

- P

- 1734 Appeals Court
BOSTO N 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.

C ivil 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 a ffordable h ousing restrictions established by the Boston Redevelopment Authority (BRA) that (1) required Pham to

1 Andrew Carpentier. A stipulation of dismissal as to Ca rpent i er was entered in the Superior Court on May 31, 2011.2

maintain his condominium unit as his pri ncipal residence , and (2) prohibited him from leasing his unit for business or investment purposes
. A s we discern no error in the S uperior
C ourt 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
roommate s t o share the space and defray the carrying costs of the unit , we affirm
. 1. Background
. 2 a . 2007 p urchase of a ffordable h ousing

u nit
. Having won a housing lottery and been approved by the
BRA , on June 1, 2007, Jeffrey Pham purchased u nit 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 relativ e to his purchase of the u nit , including the u nit deed, a d eed r ider c ovenant for a ffordable h ousing ( c ovenant) , a note, and a mortgage identifying the BRA as the mortgagee
. In addition, recorded with the u nit 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; Carpent i er, 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 u nit d eed and agreeing to its provisions along with the provisions of the m aster d eed and d eclaration of
t rust, 3 including the b y - l aws and r ules and r egulations adopted by the t rustees of the condominium
. Both as part of his applicat ion and yearly thereafter, Pham executed an affidavit averring that he occupied the unit as his principal residence
. The purpose of the c ovenant, as stated in its p reliminary

s tatement , " is to provide a uniform plan for administration and enforcement of covenants and restric tions imposed upon real property by the City of Boston and the B oston R edevelopment
A uthority
. . . [to] regulat[e] the development of real property for housing for person s 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 affor d to purchase a home in the private market will be able to own the ir own home." The c ovenant constitutes a part of the consideration paid for affordable housing properties. The c ovenant defines "Premises" as " the real property conveyed by or described in the
D eed
. . . . " Section 4 of the c ovenant 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 u nit 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 hund red 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 n ote, the m ortgage, "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 m aster d eed and the b y - l aws of the

c ondominium t rust , as prohibiting Pham's conduct
. 4
Section 7 of the m aster d eed is entitled "Use of Units and Common Elements. " Section 7A of the m aster d eed first restricts the general use of units to residential purposes only , "with no more than two ( 2) unrelated persons per bedroom
. . . . " Section 7 B of the m aster d eed 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 c ovenant as no other document was brought to Pham's attention by th e 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 m aster d eed and d eclaration of t rust, 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 brief s on appeal , we discern no error in the judge's consideration of th em.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 wit hout 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 18 A of the b y - laws of the t rust addresses rentals permitted by § 7B of the m aster d eed. It provides that any lease of the p remises shall be in writing " and apply to the entire Unit and not merely a portion thereof " ( e mphasis added)
. b
. Pham's u se of u nit
. 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 forma l 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 n or the affordable housing a greement are contained in the record.6

Pham received money approaching or exceeding his total housing
costs . Hi s last roommate departed in May , 2011
. It is uncontested that Pham traveled extensively for his job
. He concede d he f requently was absent from the un it , 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 h is girlfriend , now wife, live d
. He continued to use the u nit, however, as his home base. He kept the majority of his "valuable possessions" in the u nit. 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 u nit as his address for tax purposes. Furthermore, d uring 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 i nvestigation . The first complaints claiming that Pham was not occupying his unit came to the BRA from a trus tee 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 on7

August 4, 2010, that he was in violation of t he c ovenant and requested a meeting with him , apparently as part of its investigation
. B y letter dated October 21, 2010, the BRA informed Pham that it s investigation had been completed and that it had concluded that he was " in violatio n of Section 4 of the
Covenant because he [ d id ] 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 p remises; (ii) account for an d present a plan to pay to the BRA any monies receive d from roommates ; and (i ii ) 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 c ovenant and his

m ortgage by (i) failing to occupy the premises as his principal residence , and (ii) renting the p remises 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 af fordable housing buyer
.8

T he judge concluded that Pham continued to occupy the u nit as his princip al residence
. 6 With regard to renting the u nit, the j udge found that the c ovenant 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
. T he judge dismissed the BRA's complaint and p ursuant to the c ovenant , awarded Pham attorney's fees
. The BRA appeals and Pham cross appeal s , 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 a re plain and free from ambiguity according to their usual and ordinary sense." Suffolk Const . Co . v. Lanco
Sc affolding 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 u nit.9

Mass. 316, 320 (1975)
. This is also consistent with the general rule that a mbiguous contra ctual language is construed against its author. See Beatt y 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. H olyoke , 23 Mass. App. Ct. 472, 475 (1987).

a . Occupancy as p rincipal r es idence
. Section 4 of the

c ovenant unambiguously requires Pham t o occupy the u nit as his principal residence
. Whether Pham occupied the u nit 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, t he burden was on the BRA to prove that Pham failed to occupy the u nit as his principal residence , and we review the judge's finding s for clear error. See Dotson v. Commissioner of
Rev . , 82 Mass. App. Ct. 378, 384 (2012) (burden of proof of change of domic il falls on party asserting change). The phrase "occupy as principal residence" is not defined in the c ovenant 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, and10

suggest s 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 u nit enough to satisfy the occupancy requirement. The Supreme Judicial Court has noted that "[t]he main lesson to be drawn f r om our cases interpreting the mea n ing of the word 'residence' is that it is a word 'of flexible meaning .'" Shepard , 366 Mass. at 190. "Residence is a word of varied meaning s , 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 c ovenant 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 mul tiple 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 find ings 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 (200 4), quoting from Fiorentin o v. Probate C t . , 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 u nit, as long as it remained his primary residence.11

the unit was Pham's principal residence as he neithe r 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 u nit 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 intent ion 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 inconsist ent with the goals of assisting person s of moderate and middle income to thrive in difficult economic circumstances as reflected in the

c ovenant. While Pham's frequent absences required careful inquiry on the primary residence q uestion , the judge undertook such an inquir y 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 m ade 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 a ddress of the u nit.12

residence remained un changed, 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 , w e discern no error in the judge's determination that Pham did in fact occupy the u nit as his principal residence throughout the period in question. 10
b
. Roommates . We turn next to the question whether Pham violated provisio ns in the c ovenant , m aster de ed, and t rust b y 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 c ovenant ("The owner shall occupy the Premises"); §§ 7A and 7B of the m aster d eed ("The units are to be used only for resi dential purposes by the U nit O wner and members of the
U nit O wner's household unit" ; "the Units shall be owner

occupied" ). Consistent with this purpose, the documents together explicitly prohibit the unit ow ner'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 t he motion as involving posttrial events , and "thus not relevant in any way." The record does reflect that Pham sold the u nit i n due course after purchasing the New Jersey home.13

See § 7B of the master deed (" t he leasing of Un i ts to others as a regular practice for business, speculative , investment or other similar purpose shall not be permitted")
. All these prohibition s, and the associ ated remedies, are directed at the leasing of th e entire unit
. See § 18A of the b y - laws ( "To the
extent that a Unit O wner is permitted to lease its U nit as set forth in Section 7.B of the Master Deed , any lease or rental agreement . . . shall . . . apply to the entire U nit and not merely a portion thereof) ; § 20(c) of the c ovenant (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
roommate s who pay a portion of his carrying costs of the unit. None of the documents expressly prohibit subleas es, 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, Ma ssachusetts Landlord

- Tenant Law § 3 , at 3 (1949) (if party does not " have exclusive possession of pre mises 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

a ccepting roommates to defray his carrying costs. Section 7 A of the master deed also specifically provides that unrelated persons may occupy the unit. The c ovenant contains a broad definition of household : "all persons who reside or intend to reside toge ther at the Premises
. " N either 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 wit h 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 roo mmate, 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 posses sion 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 e d. 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. A s the judge points out, Pham's housing
costs exceed ed fifty percent of even hi s pre tax 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 u nit 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 u nit 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 1 2, supra . In so concluding, w e acknowledge the sentence in § 7 B of the m aster d eed , which states , "no A ffordable U nit may be occupied by anyone other than its owner or leased to anyone16

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 m aster d ee d when it notified Pham that he was in violation of the c ovenant , 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 reg arding occupation of the unit , has not been repeated elsewhere in the extensive documentation governing the unit. The absence of such language from the

c ovenant, the principal document governing the affordable housing aspect of the transaction, is conspic uous. There are also no specific financial remedies for unauthorized roommates, lodgers, boarders , or others sharing the unit and its expenses with the owner. Indeed, s ituated as it is between provisions requiring owner occupation and controlling rental of the entire unit, i t remains unclear to us whether this sentence in § 7B require s writt en consent for a person to occupy a room and shared space in the uni t when the owner also continues to occup y 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 leas e language prohibiting a17

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. " Peak s 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 clear er 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 f ees . 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 t he approval of the lessor. Peaks , 197 Mass. at 554

- 555.18

application for attorney's fees and costs 14 and $4,367. 6 0 on his supplemental application for attorney's fees and costs . The judge denied Pham's second supplemental application for additional fee s 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 c ovenant provides that "[i]f any action is brought to enforce this Covenant, the prevailing party shall be entitled to actual attorneys [sic] fees and oth er 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 $57 5.65.

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 a ward him legal fees for checking this Court's docket.
. . ." This issue is therefore waived and we decline to address it.19

incurred r ather 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
. Cart er 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 ch arges 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 fee s provision requiring the borrower to20

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 fee s provision at issue is part of an affordable housing covenant, drafted by the BRA, in favor of the BRA and its program objectives , and w e 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 e rr 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 a ppellate 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 supporting21

3. Conclusion . The j udgment is affirmed. The o rder denying the BRA's motion to vacate judgment is affirmed. The

o rder 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.