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Toney v. Fauhiva10/28/2005
st an unlicensed contractor for breach of contract. See Jones, 92 Hawaii at 127-28, 987 P.2d at 1025-26. The answer was no.
In the instant case, the construction of the Toneys' house and the subject retaining wall was being done by the Toneys pursuant to the owner-builder exemption stated in HRS § 444-2(7). This owner-builder exemption allows owners or lessees of property to act as their own general contractor without having to satisfy the licensing requirements imposed by HRS Chapter 444, so long as the structures or improvements built are for their or their close relative's personal use. Jones, 92 Hawaii at 126, 987 P.2d at 1024.
The plain language of HRS § 444-2(7) states that HRS Chapter 444 "shall not apply to" " wners or lessees of property who build or improve residential, farm, industrial, or commercial buildings or structures on property for their own use[.]" Clearly, that language means that the owner-builder is not required to comply with the requirements of HRS § 444-9 quoted above. On the other hand, it clearly does not mean that HRS § 444-9.1 quoted above does not apply to owner-builders. Does it mean that licensed subcontractors the owner-builder may or must hire, pursuant to HRS §§ 444-2(7) and -9.1, must comply with § 444-25.5 quoted above when dealing with owner-builders? In light of the language in HRS § 444-9.1 using the word "owner-builder", stating that the owner-builder is acting as his own general contractor even though he does not have a license, that the owner-builder must supervise the construction himself, that the owner-builder's construction must comply with all applicable laws, ordinances, building codes, and zoning regulations, and that " he county shall not issue a building permit to the owner-applicant until the applicant signs a statement that the applicant has read and understands the disclosure form[,]" and the language in HRS § 444-25.5 that the disclosure it requires must be done "prior to the application for a building permit," we conclude that the answer is no.
In other words, although owner-builders do not have most of the burdens imposed by HRS Chapter 444, they also do not have the benefits and protections of HRS Chapter 444. Therefore, pursuant to HRS § 444-2(7), the Toneys did not have the benefit of and, as to the Toneys, Fauhiva was not obligated to comply with the provisions of HRS § 444-25.5.
CONCLUSION
Accordingly, we affirm the March 30, 2004 Order Granting Defendant Lemoto "Ray" Fauhiva dba Hawaiian Isle Masonry's Motion for Directed Verdict, the June 16, 2004 Final Judgment, and the July 14, 2004 Judgment.
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