Merger not properly filed

I live in Wisconsin.

We recently discovered that all the proper paperwork had not been filed for the merger of our 2 HOAs 20+ years ago. There are 7 buildings in total and we have been operating as one HOA since then, relating to insurance, dues, voting, enforcement, election of officers, etc. Is there a time limit, after which we become one HOA even though the paperwork was not filed? My original HOA, the smaller one with 2 buildings, was dissolved (as per rules at the time) but, whatever paperwork had to be done was never completed for the merger, even though we started operating as one HOA since then.

1. After a certain time would the 2 HOAs have become one (like common-law-marriage)?
2. Is there an easy solution to make everything legal without spending a huge amount on lawyer's fees?
3. Can the HOA kick out the owners from the original smaller HOA now, after 20+ years?

I'm being asked, along with the other 8 owners from the dissolved HOA and the HOA president, to sign an attorney agreement to have the issue looked into. I bought my unit under the assumption that we were part of the HOA, as everything I received from them indicated so. I feel that I am part of this HOA and shouldn't have to sign the agreement, since the president would be acting on my behalf. Any insight would be greatly appreciated.

Mary

Disclaimer: I am not a lawyer.

In my opinion, you are still two separate HOAs. (Was an owners' vote ever held? It seems like one should have been required. You can't change what people own without at least getting their approval.)

No, there is no common law marriage for HOAs. If I understand this correctly, the two began as separate legal entities and no paperwork was ever recorded to change that. There is a legal concept of "course of conduct", which means that if someone behaves a certain way for a long enough period (for example with adverse possession of property) then that way becomes legally enforceable. But I would be surprised if such a thing could happen in this case.

Also, no one has a right to kick anyone out if the recorded covenants, conditions and restrictions (CC&Rs) say that they are members of the HOA. If they were never in the HOA, then no kicking out is needed.

Generally there is no easy solution to make everything legal without involving a lawyer. Laypersons are too likely to mess things up because they don't know what they're doing. It's generally cheaper to pay up front to do things right the first time rather than paying to untangle whatever legal messes people have gotten themselves into. If I were an owner in your community, I'd probably be seeing my own lawyer regardless, because yipes...

I believe that the reason they need you to sign an "attorney agreement" is to spend the money on a lawyer to fix this situation. I'm assuming from what you've written that:
1) You and the other owners from the smaller, "dissolved" HOA would like to continue being part of the larger Association vs having your own HOA reincorporated
2) That both your 9 members and the rest of the members of the other group wish to remain as one Association.

I'm in Virginia, so I'm operating on what I know from this state (commonwealth) but if I were in your shoes I would sign the agreement. If the 9 owners belonging to the smaller group do not agree to support having an attorney review the situation and rectify it, then you may find that the larger HOA just decides since there was no legal merger of the Associations, that you can just be cut loose to do your own thing. Here in VA, you must have a recorded deed amendment with your county courthouse amending your declarations to include the annexed property. The larger HOA "annexed" you into their Association (or were supposed to), I'm hoping upon affirmative vote of your smaller HOA's membership that you desired to do so. If the documents were never filed with your county, if that is what FL also requires, then they are correct that you have never been part of their Association. Instead, you have been abiding by their rules basically voluntarily, and contributing your membership dues that way as well.

The real question in my mind is this: if you have been paying that Association for 20+ years, the amount of funds that you and the other 8 owners from the dissolved HOA have contributed would be extremely hard to account for. This is pertinent because if you don't agree to have an attorney help you figure this out then it's possible that (as I stated above) things will just fall apart. It's easy* to form your own 9 member HOA again. What's not easy is getting back whatever monies are present in the operating and reserve funds of the Association you've been paying that are attributable to you and the other 8 members. It would require an accountant at the very least to do a forensic audit of the books going back to the time that you started paying this other group, and calculating what percent of contributed funds from each member paid for what percent of building maintenance, things that were done strictly to your 9 units vs the other units, etc. Given that they are larger than you and have an effective Association in place, they may just say "sorry, we're not giving you back any funds you paid to us, voluntarily, over the last 20+ years." You'd need an attorney to challenge that anyway.

I say all of that to just inform you that in my opinion, you should sign the agreement and have an attorney figure this out. They aren't doing it to be adversarial, unless they are now actually trying to push you out vs help ensure that both Associations remain as one. As hard as it is to see member dues spent on legal opinions, you really, really need one here. The President of the BoD isn't currently acting on your behalf, even if they are trying to keep you in the Association, as you aren't legally a member. You can't rely on that person in this moment, you need legal help. If you don't want to sign the agreement to retain an attorney through the Association, then you and the other 8 members of the smaller, dissolved HOA need to pay out of pocket and obtain an attorney that represents your group in this matter. You need to do that anyway if I'm incorrect about my assumption and they are actually trying to push the 9 of you back out vs keeping the group together.

*"easy" is relative in this situation - reforming your own HOA is definitely easier than trying to figure out how much money you may be owed from the Association you've been paying and then actually getting it back.