Ultima Carolina, LLC—Liability under Interstate Land Sales Full Disclosure Act

Macon County Digitized Soil Hazards Map—
Additional Macon County landslide hazard maps are
available through the NCGS.

Ultima Carolina, LLC

Ultima Carolina, LLC was formed in 2004 by Robert Ullmann and Hardy Smith to develop residential communities in Western North Carolina. There are four subdivisions under Ultima Carolina sponsorship in the state: Avalon, Black Bear Falls, Fontana Trace and Wildflower.

The Ultima Carolina community under discussion is located in Macon County, NC. Wildflower, also known as Wildflower Development Franklin, NC, is a steep-slope 2,000-plus acre development site with a 30-mile road system. The entity responsible for the Wildflower Subdivision is Ultima WNC Development, LLC.

Wildflower’s private subdivision roads became a matter of public concern on November 17, 2009 when a section of one road failed, setting off a landslide. State geologists warn that the Thompson Road landslide, unless stabilized, is a danger to property owners outside the subdivision. During the course of their investigation, geologists found more than 20 road construction hazard areas.

The county is holding the developers accountable for addressing the subdivision’s landslide-prone road conditions. This engineering project will be costly: Wildflower roads were built on colluvial soils.

When the Smoky Mountain News reported on December 16, 2009 that these “Road failures cast uncertainty on Wildflower’s future,” it did not consider the consequences for Wildflower property owners. The question of whether the developers repair the subdivision's road hazards is moot: The Wildflower Homeowners’ Association owns and is legally responsible for the subdivision roads.

Prior to the North Carolina Geological Survey's Wildflower landslide report, property owners were unaware of their outsize responsibilities because the state does not require developers to disclose hazardous-soil conditions on sales contracts and Subdivision Street Disclosure Statements.

Although Wildflower property owners have no redress under North Carolina statute they do under federal law.

Wildflower Property Report

Ultima Carolina, LLC sales practices are governed by federal law under the Interstate Land Sales Full Disclosure Act (“ILSFDA”). All purchasers of land in ILSFDA-defined subdivisions must receive a highly formatted full disclosure document titled The Property Report prior to signing sales contracts.

Full disclosure would include identifying the soil compositions within the subdivision and whether or not they are recommended as a road construction base.

Land sales for the Wildflower Development Franklin, NC were initiated on November 6, 2004. Ultima Carolina registered the Wildflower Subdivision with the Department of Housing and Urban Development on January 26, 2005. The developer's name is recorded as Ultima WNC Development, LLC.

As noted in the excerpt below: selling lots prior to registration is a violation of the Act as is the omission of material fact.

Interstate Land Sales Full Disclosure Act

Requirements Relating to the Sale or Lease of Lots

Sec. 1404.

(a) It shall be unlawful for any developer or agent, directly or indirectly, to make use of any means or instruments of transportation or communication in interstate commerce, or of the mails --

(1) with respect to the sale or lease of any lot not exempt under section 1403 --

(A) to sell or lease any lot unless a statement of record with respect to such lot is in effect in accordance with section 1407;

(B) to sell or lease any lot unless a printed property report, meeting the requirements of section 1408, has been furnished to the purchaser or lessee in advance of the signing of any contract or agreement by such purchaser of lessee;

(C) to sell or lease any lot where any part of the statement of record or the property report contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein pursuant to sections 1405 through 1408 of this title or any regulations thereunder; or…

Relevant Information for Wildflower Property Owners

1998—The Federal Emergency Management Agency requires the state to notify Macon County and 22 other counties that land under their jurisdiction is landslide-hazardous.

2000— Western North Carolina real estate landslide hazard mapping program is instituted.

September 16, 2004— The Peeks Creek landslide kills 5 people and destroys 15 homes in Macon, N. C. Fourteen other Western North Carolina counties are declared federal disaster areas in September 2004.

November 6, 2004— “Wildflower Celebrates Its Grand Opening.”

February 2005—North Carolina General Assembly North Carolina General Assembly recognizes the urgent need to accelerate Western North Carolina real estate landslide hazard mapping program.

October 2006—Macon County real estate landslide hazard maps are released with a press statement from then-governor Mike Easley:

These maps will show which areas are prone to landslides, and that will help developers, county officials, and residents decide where to safely build homes, roads, and other structures.

It is not known whether Ultima Carolina, LLC provided their clients with fair warning of the subdivision’s hazardous-soil conditions. If this material information was not included:

A plaintiff need not prove reliance or the defendant's fraudulent intent in order to recover under ILSFDA.137 Instead, the purchaser must only establish a material omission or misrepresentation, however innocent or unintentional, by the developer.138

Reference: “Litigation Involving the Developer, Homeowners’ Associations, and Lenders”—E Richard Kennedy—April 2004