How to Get Grandfathered

I'm new to my community, but the house I bought belonged to my grandparents since it was built in 1972, and I know it well. My house has a chain-link fence separating my backyard from my neighbor's, and my grandparent's tell me the fence has been there since the house was built. I like the fence, because I can look beyond my yard and view the neighbor's sparkling pool. I have a great relationship with that neighbor, and they tell me that the HOA deed restrictions officer has given them notice to take the fence down.

My grandparents tell me that the fence predates the deed restrictions, but my neighbor doesn't have any documentation to back that up. The neighbors only bought the house in 1995, which is after the restrictions went into effect. Where does the burden of proof lie? Should the HOA have to prove the fence was built after the restrictions, or should my neighbor have to prove the fence came first?

I have a stake in this, as well. When my nephews visit, that fence protects them from falling in the pool while they play in my backyard. That fence also keeps the neighbor's guest on his property when he has a party in his backyard.

Kenneth,

Normal development practice is to find a vacant tract, survey and record a plat, and record a declaration of CC&R's before any homes are built or sold.

I have a hard time believing that once upon a time there was a chain link fence in the middle of a vacant field and that the developers laid out their lots around it and the builder left it untouched as he bulldozed around it and built the house on your neighbor's property. Yes, it may have been there when your grandparents moved in but I seriously doubt that the fence pre-dates the development.

There is still a question as to why, after 40+ years, is the association just now objecting to this fence?

If there is a pool, the fence may be required by local zoning codes. Your CC&R's cannot be used to defeat the zoning code.