Governors Island Club injunction against homeowner continued

LACONIA — A Superior Court judge ruled yesterday that a temporary injunction that stops a Summit Avenue resident and member of the Governors Island Club from building a garage and putting a cottage on top of it will remain in force until the parties go to court and a trial judge decides the case on the facts.

Belknap County Superior Court Judge Kenneth McHugh said yesterday that Laconia resident Richard Homsi didn't provide enough evidence to warrant his lifting of an emergency injunction Judge James O'Neill granted to Governor's Island Club, Inc. on June 12 to stop Homsi's construction project.

The GIC said Homsi was building a structure that was not approved by its Board of Directors and board approval is required by the restrictive covenant he agreed to when he bought the property and recorded the deed in 1999. The covenant Homsi objects to is the one that says no unconnected structures can be built on a single lot.

In layman's terms, a restrictive covenant is a deed restriction that typically comes with the property and limits what can be done on a piece of property. They are common and typical in private associations or condominium complexes.

On Governor Island, most homeowners are members of the association that was formed in 1940 and filed its covenants in 1994. Homsi is one on the few whose property is just over the bridge in Laconia.

Among other things, Homsi, through his attorney Patrick Wood, argued that the GIC "selectively enforced its covenants" because there were other free-standing structures on other properties and other properties entered and left CIC at will.

Wood also said there was no reciprocal benefit from Homsi's membership in the club because he has no need for private roads, beaches and club facilities. In a hearing last week, he also argued that he had never gotten the benefit of trash collection, even though he is entitled to it.

Atty. Paul Fitzgerald argued the case for Governor's Island.

"Latitude does not exist," he said, dismissing Homsi's argument that the GIC is a voluntary association.

He said that before the covenant was recorded in 1994, Wood's argument was correct and called 1994 a "watershed year" for the GIC.

Fitzgerald said that of the 130 lots that are members, the handful of properties that are not members are not because in 1994 not all of those who were eligible "signed on."

He also argued that Homsi registered the deed when he bought the property in 1999 and the deed clearly stated his property was part of the Governors Island Association because the previous landowners joined.

"When you record a deed you can't pick and choose," he said.

"It's not a voluntary association," likening the GIC to joining the military. Even if you don't like it, "you can't leave."

For the limited purpose of keeping the injunction in place, McHugh sided with the GIC.

"While indeed it appears that some members have been released over time, those members are few and far between and are the subject of an individual set of circumstances which the defendant do not parallel," he wrote.

As to selective enforcement, McHugh said the legal remedy for Homsi "is to push the (GIC) to enforce the (covenants), not to allow him to violate it. Two wrongs do not make a right."

Leaving the door open to further litigation, McHugh said selective enforcement may be argued at a trial and whether or not the illustrations Wood provided are persuasive must be decided by the trial court that hears the case.

He also said one point Wood made that could favor Homsi at trial was that the enforcement of restrictive covenants is tied to the fact that covenants must be filed when the association is formed.

McHugh said in his opinion, the covenants are reasonable and were in place "years before (Homsi) acquired his property." he also noted that while the "objectionable restriction" of not allowing two unconnected buildings on the same lot was put in place in 1999, the GIC had always had some rules for membership.