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People who buy 'affordable' condos are allowed to have roommates and to travel for business, court tells BRA

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.

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Comments

100% side with Mr. Pham here. I have little sympathy for an organization that doesn't even seem to want to follow it's own rules (BRA, in this case).

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I agree with the ruling, but oddly find myself applauding the BRA for ensuring the winners of the lottery actually follow the rules. I believe a requirement of getting the 'golden ticket' for one of these units is that you promise not to sublet it...which it sounds like this tenant was almost doing. We also don't know what he charged for rent, but it's very conceivable that it's more than his monthly payment, technically creating a profitable business for the tenant. Looks like his saving grace was that the tenant kept stuff in his apartment, so he could claim he still lived there.

With all the abuse of government programs, it's nice to know you can't easily flip these affordable units. After all, this program subsidizes these units, so any winner could easily rent out their place and make 150-250%...I like knowing there is actually oversight!

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a bad point really, although i stand by what i said earlier as well, in that the BRA was trying to force the issue based on some things that weren't even against their own rules.

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People who make 70k a year qualify for affordable condo/housing in Boston -I do not get it, if you make $25k a year and are on a waiting list to get into an affordable unit, your out of luck, the asshole who drives a BMW and makes $75k a year will get that affordable unit first. This is what Im seeing while driving past these affordable units , luxury cars parked out front. Affordable housing in the Boston area should be occupied by down and out people with a low income wage!

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i don't think i've ever seen a post more incorrect here. the only thing that sounds 'about right' is some of the disdain i see towards anybody that makes a livable wage. and uh, yeah, try making only 75k a year and buying any property in the city without some help such as the affordable housing program.

but yes lets cry about people that make what, in boston is really an 'ok' amount of money, and cry because they're good enough with that money to afford a decent car and a house that their government helps them afford. not everybody needs to be as poor, uneducated, and miserable as you.

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The problem here scumsquistador is these people who make $75k a year and living in these units are mostly single males they know how to to take advantage of the affordable housing system to save a buck or two, they want to live close to the city , this is why there is a shortage of affordable housing in Boston, families with kids have no choice they're detoured to Lynn or Brockton areas with low rental housing.

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that is what YOU have decided the problem is. shockingly, single males also deserve a decent quality of life.

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[citation needed]

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75K is middle class in Boston. Being eligible for affordable housing is one of the very few perks middle class people get. The vast majority go to the 1% and the poor.

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I think you are confusing Affordable Housing with Low Income Housing. Low income housing, which is rental housing or "housing projects" is designated for people making so little they cannot afford a place to live without public assistance. Affordable Housing, which is typically not rental, is essentially "worker housing" and is designed to allow people who could otherwise afford to buy a home in a normal housing market to afford to buy a home. It is either a specific percentage of units developed on-site in otherwise non-affordable housing, or it is built from affordable housing developer fees somewhere else. There is much debate over whether we need affordable housing or whether the market would just provide it if developers did not have to build it, but on $75K in Boston you currently cannot afford to buy much without affordable housing.

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You'd have to live pretty lean to afford a mortgage, condo fees and a BMW on $75k a year in Boston!

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Shh, you're making CX feel oppressed by disagreeing with his views.

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Roslindaler is correct. The housing is Work Force Housing and the BRA sets a minimum income needed for applicants to be able to afford the rent. A person or household with $0 income would not qualify in this instance. Unemployment benefit income does not qualify as adequate income in this program. At the same time the BRA sets a maximum income for eligibility to qualify for the lottery. Income of lottery applicants is verified via State and Federal tax returns, pay stubs and third party asset verification.

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The way the affordable housing thresholds are set up currently is not helping. Let's say you're lucky enough to get into an affordable housing unit right now. That's going to still be at least $250,000 and up for most of them. Then to qualify for that still, quite hefty, price you need to earn less than $44,000 gross. Guess what. You can't afford it. That is a major problem. To afford a place that costs even as low as $250,000, and not live well below the poverty line, you need to actually earn more than $44,000 net, let alone gross. There are going to be hundreds and hundreds of dollars in condo fees, assessments, and utilities each month on top of the mortgage payment that is already going to strain your low pay. Meanwhile the vast majority of wage earners make too much to qualify for affordable housing at all, but not enough money to afford market rate housing.

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Not technically true.

For example, an advertised 1 BR in Charlestown is available for $173.000 (http://www.bostonredevelopmentauthority.org/getattachment/cfeb6247-b926-... ). Income restriction is up to 80% of the median income which is $55,000. Taxes are based on the sell-able price (restricted by deed), not actual value (and then factor in the owner-occupied exemption) and taxes are minimal. Same goes for condo fees. In a building where market rate units would pat $600/mo condo fees, a BRA unit may only pay $150-200.

To get one of these units, you need to show that you are financially able to afford what you are signing up for.

In a "high-end", 1-br BRA condo and mortgage, taxes, condo fees and utilities are less than $25,000yr.

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not the price I paid. Why would someone that bought during a bust get to pay less?

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for a BRA unit? In my building all non-BRA units are based on SF, but the BRA units fees are only a fraction of that. In turn, our voting percentage in the building is reduced as well.

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In Massachusetts condo fee calculations rely on the calculation of the percentage of beneficial interest which takes into account unit deed restrictions as well as square footage.

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Not only does the individual have to make a specific amount of money, but they can't have too much in assets, which makes it very difficult to obtain a mortgage for one of these affordable units. I know 2 people in affordable units and they barely squeezed by the mortgage approval process, despite their final total monthly cost for the affordable units being less than what they were paying in rent then.

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I feel as though this is going to be pointed to when Air BnB finally gets their day in court, or a city council hearing at least.

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I don't get the connection.

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The implication is that the titular owner is traveling frequently enough to be effectively subletting a furnished apartment to his "roommate." Not too far a stretch to apply the same logic to a series of roommates who are recruited through AirBnB.

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This won't affect AirBnB in Boston. This ruling is specific to the terms of the BRA's rules for affordable housing buyers that accompany a purchase of affordable housing via the lottery. Whether or not a person in non-BRA property rents a unit to an AirBnB customer is not affected by this. What would matter in that situation is whether that person's condo association terms prohibit such rentals or not, as some have started to do.

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We have a bingo

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I think the big thing for AirBnB is whether a HOA can stop people from renting out their apartment on AirBnB.

Shopping for a subletter on air bnb is bad idea. Once some one has stayed longer than 30 days they are a tenant, with all the rights of a tenant.

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How does this occupancy not count against the income eligibility requirements?

This opens the door for gaming of the system.

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They only have to qualify at the time of sale.

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"they owe Pham more than $92,000 in legal fees and costs."

Holy crap

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it was cheap to fight the man

edit: and win

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For a case that went up to the Appeals Court, $92k in fees and costs sounds like the BRA got off easy.

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Good. And how much did they waste pursuing this nonsense case in the first place? Reminds me of this from the UK: Council loses nine-month legal battle with man who accidentally dropped orange peel.

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Which he may have been.

They did a crappy job proving it.

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at the place they say he didn't live at didn't help

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He would still get his mail there I mean.

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Plus NJ has higher taxes so why wouldn't he pay taxes in MA?

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per the ruling, the judge used that as part of why he ruled in phams favor

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I cannot believe that the rent he would be collecting from his roommate leaves a profit after the mortgage, condo fees, utilities, etc - though it's possible - and you can't make a profit when you sell unless you hold the property for more than 50 years.

Seems like a lot of money to invest (downpayment) to earn a couple hundred bucks a month at most

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Say he got married ... or that "roomate" was really a live-in lover situation.

Would he have to sell the place because there were now two incomes supporting that property?

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No.

Affordable homeownership opportunities only look at income at time of purchase.

If you get in and then find a job that pays 7 figures, you're still in.

Affordable rentals are the only ones that are impacted by changes in income and household composition.

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Look at the address of David Ortiz's Boston Penthouse.

http://boston.curbed.com/archives/2015/02/david-ortiz-penthouse.php

Look at the address of this affordable unit.

They're both 2400 Beacon Street.

I guarantee you that rent in that building can easily surpass the mortgage payment on a BRA unit.

I'm not sure people realize how much Pham won the lottery by getting that unit.

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that as it stands mr. pham hasn't done anything wrong at all. i have no reason to believe that he has done anything untoward.

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The roommate's contribution should serve to increase the man's income, so much for affordable housing concessions I guess.

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Essentially Jeffrey Pham getting a subsidized place which he only uses to turn a profit by renting it out to tenants; and, oh wait, he also uses it as a storage space for his stuff so that makes it okay? Pham is gaming the system. He is making a tidy profit off of a unit which he rarely lives which could have gone to an honest hard-working person who was actually going to live there...which is the purpose of affordable housing! What a shame.

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He's now convinced a Superior Court judge and the entire Court of Appeals that he's actually living there. He must have some persuasive lawyers.

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People can have multiple residences. Just because you're envious doesn't make it wrong.

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A win for private property rights.

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