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Boston Redevelopment Authority v. Pham

Appeals Court of Massachusetts, Suffolk

December 9, 2015

Boston Redevelopment Authority
Jeffrey Pham & another. [1]

Argued October 1, 2015.

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.

Present: Kafker, C.J., Katzmann, & Rubin, JJ.


[42 N.E.3d 646] 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 maintain his condominium unit as his principal residence, and (2) pro-

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hibited 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.

[42 N.E.3d 647] 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 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."

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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:

" [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]

[42 N.E.3d 648] 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 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, ...

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