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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 twobedroom 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 jurywaived 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 bylaws 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 owneroccupied"). 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.