Can the owner of one townhouse unit in a four-unit building use the Florida owner-builder exemption to do their own construction work without a contractor's license?
Plain-English summary
Florida Attorney General Ashley Moody concluded that the owner-builder exemption in § 489.103(7)(a)(1), Florida Statutes, does not apply to owners of individual dwelling units in a building made up of four separately owned units. The opinion responded to the Town of Ponce Inlet, which had received applications from owners of single units in four-unit residential buildings where each unit was owned in fee simple and shared at least one common wall and a common roof with the other units.
The AG read § 489.103(7)(a)(1) as requiring a single owner of the entire one- or two-family residence. Two statutory-construction moves support that reading. First, where the Legislature wanted other parts of chapter 489 to cover townhouses, it said so expressly, including § 489.103(7)(a)(4) ("one-family or two-family residence, townhome, or an accessory structure … or an individual residential condominium unit or cooperative unit"), § 489.117(4)(d) ("single-family residences, including a townhouse"), and § 489.1402(i)'s expanded "residence" definition. The omission of "townhouse" from § 489.103(7)(a)(1) is read as deliberate. Second, the AG cited White v. Mederi Caretenders Visiting Servs. of Se. Fla., LLC, 226 So. 3d 774, 781 (Fla. 2017), for the rule that "including" is a word of expansion, confirming that the Legislature knew how to expand "single-family residence" to cover townhouses when it intended to.
The AG framed the conclusion as one that holds "unless and until judicially or legislatively clarified."
What this means for you
Florida townhouse and condo unit owners
The opinion reads § 489.103(7)(a)(1) as requiring the applicant to own and not lease the entire one- or two-family residence. Under the AG's reading, a unit owner in a four-unit residential building does not fit within the exemption. The opinion separately identifies § 489.103(7)(a)(4) as an exemption that does expressly include "townhome" and "individual residential condominium unit or cooperative unit," but limits that exemption to "completing the requirements of a building permit" with different occupancy criteria.
Florida building officials and local permitting agencies
The opinion provides a clear textual basis to deny applications under § 489.103(7)(a)(1) where the building is comprised of multiple separately owned units. The AG identifies the four-unit Ponce Inlet configuration (each unit fee simple, common walls, common roof) as outside the exemption.
City attorneys and local government counsel
The opinion identifies the textual indicators that the Legislature treats townhouses and multi-unit buildings as a separate category in chapter 489. It also relies on a Florida Supreme Court canon (White v. Mederi) about the word "including" as expansion, and on prior AG opinion 97-89 (townhouse unit is not a single-family dwelling for sprinkler-system purposes) as a parallel construction.
Florida construction lawyers
The opinion's analytical method is in pari materia comparison across chapter 489 subsections. Where (7)(a)(4) names "townhome" expressly and (7)(a)(1) does not, the AG treats the difference as deliberate. The opinion also distinguishes (7)(a)(4)'s narrower scope (permit-completion work, no one-year occupancy requirement) from (7)(a)(1)'s broader scope.
Common questions
Q: What does the § 489.103(7)(a)(1) owner-builder exemption authorize?
A: The exemption allows a property owner acting as their own contractor, providing direct on-site supervision of all work not done by licensed contractors, to build or improve "farm outbuildings or one-family or two-family residences" for the owner's occupancy and not offered for sale or lease (with a separate $75,000 cap for commercial buildings).
Q: Why does the AG read the exemption as requiring a single owner of the whole building?
A: The AG points to the lease-restriction in (7)(a)(1) (the exemption is unavailable if any unit is leased) as indicating "the Legislature intended the exemption to apply to a single owner rather than two separate owners of units in a two-unit building." The textual contrast with (7)(a)(4), (7)(a)(4) names "townhome" expressly, reinforces the reading.
Q: Is there a different exemption that covers townhomes?
A: Section 489.103(7)(a)(4) covers owners completing the requirements of a building permit on "a one-family or two-family residence, townhome, or an accessory structure of a one-family or two-family residence or townhome or an individual residential condominium unit or cooperative unit." It is a narrower exemption, focused on permit completion, with its own occupancy criteria.
Q: What if a single owner owns all four units in the building?
A: The opinion specifically addresses the situation where each of the four units "is owned by a different owner." It does not separately analyze a single-owner-of-all-units configuration.
Q: How firm is the conclusion?
A: The AG framed it as holding "unless and until judicially or legislatively clarified." AG opinions are persuasive but not binding on courts.
Background and statutory framework
Chapter 489, Part I, Florida Statutes is Florida's contractor licensing law. Section 489.101 declares it "necessary in the interest of the public health, safety, and welfare to regulate the construction industry." Section 489.103 carves out exemptions, including the owner-builder exemption in subsection (7).
The opinion compares three textual signals across chapter 489:
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Section 489.103(7)(a)(1). Owner-builder exemption for "farm outbuildings or one-family or two-family residences." No express reference to townhomes, townhouses, or condominium units.
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Section 489.103(7)(a)(4). Exemption for permit-completion work on "a one-family or two-family residence, townhome, or an accessory structure of a one-family or two-family residence or townhome or an individual residential condominium unit or cooperative unit." Express reference to townhomes and condominium units.
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Section 489.117(4)(d). Permits certain persons to undertake "construction, remodeling, repair, or improvement of single-family residences, including a townhouse as defined in the Florida Building Code." Express expansion via "including."
The opinion also cites § 489.1402(i)'s expanded "residence" definition (covering certain Homeowners' Construction Recovery Fund provisions) as another example of the Legislature expressly broadening the term when intended.
The AG relies on White v. Mederi Caretenders Visiting Servs. of Se. Fla., LLC, 226 So. 3d 774, 781 (Fla. 2017), for the canon that "including" is a word of expansion, and on Op. Att'y Gen. Fla. 97-89 (1997) (townhouse unit is not a single-family dwelling for sprinkler-system purposes) as a parallel construction.
Citations and references
Statutes:
- § 489.101, Fla. Stat. (Construction industry findings)
- § 489.103, Fla. Stat. (Exemptions)
- § 489.117, Fla. Stat. (Registration and certification of contractors)
- § 489.1402, Fla. Stat. (Homeowners' Construction Recovery Fund definitions)
- § 481.203, Fla. Stat. (Architecture & interior design definitions)
Cases:
- White v. Mederi Caretenders Visiting Servs. of Se. Fla., LLC, 226 So. 3d 774, 781 (Fla. 2017), "including" is a word of expansion, not limitation
- Op. Att'y Gen. Fla. 97-89 (1997), townhouse unit is not a single-family dwelling for sprinkler-system purposes
- Op. Att'y Gen. Fla. 89-68 (1989), earlier interpretation of (7)(a)(1) before "or lease" was added
Source
- Original PDF: https://www.myfloridalegal.com/print/pdf/node/26659
Original opinion text
The full opinion as issued by Attorney General Ashley Moody:
Mr. D. Andrew Smith, III
City Attorney, Town of Ponce Inlet
Shepard, Smith, Kohlmyer & Hand, P.A.
2300 Maitland Center Pkwy., Ste. 100
Maitland, Florida 32751-7410
Dear Mr. Smith:
This office received your letter requesting a legal opinion on behalf of the Town of Ponce Inlet ("Town"). In it, and in information you provided subsequent to submitting the request, you ask substantially the following question:
Does the owner-builder exemption from requirements of chapter 489, part I, which is codified at section 489.103(7)(a)(1), Florida Statutes, apply where a single unit owner seeks to make improvements to an individual dwelling unit in a building containing four such interconnected units?
In sum:
Unless and until judicially or legislatively clarified, I conclude that the exemption provided to persons building or improving "farm outbuildings or one-family or two-family residences" owned by such persons and not offered for sale or lease when "acting as their own contractor and providing direct, onsite supervision themselves of all work not performed by licensed contractors" does not apply to owners of individual dwelling units that are part of a single building comprised of four such units.
Background
The Town has received applications from property owners living in buildings that consist of four dwelling units per building. Each applicant seeks an owner-builder exemption that would allow the owner to make improvements to a single unit in the building. Such units are arranged in a row lengthwise across the building (i.e. the front doors all face the same direction); each unit is owned in fee simple ownership; each unit has a private front door, back door, and garage; each unit shares at least one common wall with another unit (interior units have two common walls); and the building has a common roof (i.e., one roof for the whole building). Thus, each residential building contains four individual units, each of which has a separate owner who lives in his or her own unit.
Analysis
Deeming it "necessary in the interest of the public health, safety, and welfare to regulate the construction industry," the Legislature enacted part I of chapter 489, Florida Statutes. Various sections throughout chapter 489 refer to types of dwellings and non-residential buildings. Among these are one-family (or single-family) residence; two-family residence (or duplex); three-family residence; quadruplex housing; townhome; townhouse; condominium unit or cooperative unit; and farm outbuilding.
Section 489.103(7)(a)(1), Florida Statutes, provides an exemption from licensing requirements codified in part I of chapter 489 for property owners acting as their own contractors in building or improving "farm outbuildings or one-family or two-family residences." In pertinent part, it provides:
This part does not apply to:
(7)(a) Owners of property when acting as their own contractor and providing direct, onsite supervision themselves of all work not performed by licensed contractors:
- When building or improving farm outbuildings or one-family or two-family residences on such property for the occupancy or use of such owners and not offered for sale or lease, or building or improving commercial buildings, at a cost not to exceed $75,000, on such property for the occupancy or use of such owners and not offered for sale or lease. In an action brought under this part, proof of the sale or lease, or offering for sale or lease, of any such structure by the owner-builder within 1 year after completion of same creates a presumption that the construction was undertaken for purposes of sale or lease.
The statute also includes a lengthy disclosure statement that the local permitting agency is required to provide to each applicant in connection with an owner's application for an exemption. It reflects that the applicant understands the scope of the exemption and that, if the applicant violates any limitation of the exemption, "the law will presume that [the applicant] built or substantially improved" the residence or farm outbuilding in violation of the exemption. § 489.103(7)(c), Fla. Stat. (2022).
To qualify for the exemption, section 489.103(7)(a)(1) requires that the owner of the subject residence occupy or use, and not offer for sale or lease, the entire one-family or two-family building. The exemption's inapplicability to owners of duplexes where one of the units is leased indicates that the Legislature intended the exemption to apply to a single owner rather than two separate owners of units in a two-unit building.
The Town's question appears to involve applicants who own residential townhomes or townhouse units. A "townhouse" ("[a]lso termed townhome") is defined in Black's Law Dictionary as a "dwelling unit having [usually] two or three stories and often connected to a similar structure by a common wall and (particularly in a planned-unit development) sharing and owning in common the surrounding grounds." Thus, the Town appears to be asking whether a townhouse or townhome unit is included in the Legislature's designation of one-family residence, for purposes of the exemption provided by section 489.103(7)(a)(1). For the following reasons, I conclude that they are not.
Throughout chapter 489, the Legislature opted to refer to different types of structures. In one instance where the Legislature intended its reference to a "single-family" residence to also mean a townhouse, it specifically signaled such intent by adding the expansion word, "including." Section 489.117(4)(d) allows certain persons to undertake the "construction, remodeling, repair, or improvement of single-family residences, including a townhouse as defined in the Florida Building Code . . . ." (Emphasis added.) By using the phrase "including a townhouse," the Legislature indicated it intended to expand the meaning of "single-family residence" in that particular provision to include townhouse dwelling units. In addition, this office has confirmed that "single-family dwelling" did not mean "townhouse" in a statute that provided an exception to certain sprinkler system requirements.
In another instance in which the Legislature intended to include townhomes in addition to one-family and two-family residences, it specifically stated such: in contrast to section (7)(a)(1), section (7)(a)(4) provides criteria for an exemption for completing the requirements of a building permit that applies to owners of "a one-family or two-family residence, townhome, or an accessory structure of a one-family or two-family residence or townhome or an individual residential condominium unit or cooperative unit." (Emphasis added.) Section (7)(a)(4) further distinguishes itself from section (7)(a)(1) by providing that an owner who qualifies for the exemption under section (7)(a)(4) need not occupy the dwelling or unit for at least 1 year after completion of the project.
Lastly, the Legislature has explicitly expanded the meaning of "residence" where it has intended to do so. In section 489.1402(i), Florida Statutes ("Homeowners' Construction Recovery Fund; definitions"), the Legislature created a unique definition for "residence," specifying that the definition applies to sections 489.140 through 489.144, Florida Statutes. The statute defines "residence" as "a single-family residence, an individual residential condominium or cooperative unit, or a residential building containing not more than two residential units in which the owner contracting for the improvement is residing or will reside 6 months or more each calendar year upon completion of the improvement." In contrast, the Legislature has not, in section 489.103(7)(a)(1), included language similar to that used in sections 489.103(7)(a)(4), 489.117(4)(d), or 489.1402(i) to explicitly include townhome structures.
Conclusion
Based on the foregoing, unless and until judicially or legislatively clarified, I conclude that the owner-builder exemption provided in section 489.103(7)(a)(1) does not apply to owners of individual dwelling units that are part of a single building comprised of multiple units, each of which is owned by a different owner.
Sincerely,
Ashley Moody
Attorney General