A man the BRA tried to kick out of his Cleveland Circle condo in part because he decided to bring in a roommate to help pay his mortgage gets to keep the unit under a Massachusetts Appeals Court ruling today.
The BRA said the roommate's payments towards the rent constituted a "business" barred under the rules of the condo association board at 2400 Beacon St. and that Jeffrey Pham should be forced to forfeit the unit, which he'd won the right to buy in a lottery under the city's affordable-housing rules, which require developers to set aside a certain number of units - or make cash payments - at below market rates.
The BRA argued that Pham's frequent absences from the condo - and from condo-association meetings - showed he wasn't really living there and that his roommates' payments toward the rent constituted a "business" barred under BRA rules that require the owner of an affordable unit to live in it and under condo-association rules against home businesses.
Nonsense, the appeals court ruled today, upholding a similar ruling by a Suffolk Superior Court judge in the case, which the BRA brought in 2010.
Pham traveled for business but kept all his valuable stuff in his Brighton condo and declared it his primary residence, the justices wrote, noting the condo was where the BRA served him with notice of its lawsuit. Nothing in BRA regulations bars owners of the units from travel, the court added.
As for having roommates, the justices wrote:
At 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.
The court wrote the BRA could include more specific language in future affordable-unit provisions, but that in the meantime, they owe Pham more than $92,000 in legal fees and costs. The BRA could appeal the decision to the Supreme Judicial Court.