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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 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.
