The question would be whether or not your use of the property meets the requirements for adverse possession. I'm going to paste in a paragraph taken from a Washington Court of Appeals case called Campbell v. Reed, 134 Wn. App. 349 (2006). [NOTE: Since I can't modify the font here, everthing between the three asterisks is material from the cited case.] ***"Adverse possession . . . is a doctrine of repose; it says that at some point legal titles should be made to conform to appearances long maintained on the ground." WILLIAM B. STOEBUCK & JOHN W. WEAVER, 17 WASHINGTON PRACTICE, REAL ESTATE: Property Law § 8.1, at 504 (2004). To establish adverse possession, the claimant must provide evidence that her possession was: (1) exclusive, (2) actual and uninterrupted, (3) open and notorious, and (4) hostile. Chaplin, 100 Wn.2d at 857 (citing Peeples v. Port of Bellingham, 93 Wn.2d 766, 613 P.2d 1128 (1980)). Such possession must have existed for at least 10 years. Chaplin, 100 Wn.2d at 857 (citing RCW 4.16.020). Hostile possession does not require the claimant to show enmity or ill-will but only that she has possessed the land as owner, not as one who recognizes the true owner's rights. Chaplin, 100 Wn.2d at 858-59.*** If you think your fenceline meets those requirements then you ought to consider contacting an attorney with experience in real estate and adverse possession matters. Fencelines are a pretty common way of establishing adverse possession, but the fact that you have a fence doesn't necessarily mean that you will meet all of the requirements. This is an area where seemingly minor facts and nuances can make a big difference.
I agree with Attorney Lineberry's response. "Adverse Possession" is a legal doctrine which states, basically, that if someone occupies a piece of property that actually belongs to someone else, and it is obvious that he is occupying it (putting up a building or even the location of a fence makes it "obvious"), then after a certain period of time -- usually 10 or 20 years depending on the jurisdiction -- the "real" owner loses the right to take it back. Your situation, where the fence is in the wrong place (and I assume the fence is over on your neighbor's rightful side of the property, thus increasing the size of your own parcel) is a common one. But if your neighbor waited too long, he's out of luck. Depending upon your relationship with your neighbor, however, you might want to think about whether you want to fight him on this. You have to live next to this person, and if the difference is just a couple of feet, you may want to ask yourself whether it's worth ruining the relationship over a couple of feet of property that doesn't matter to you anyway. Lawrence N. Rogak
There are a host of possibilities here - including the aforementioned adverse possession. There are also a number of other legal concepts which might change the 'deed/ legal description' location of the boundary line. I won't go into any detail on this, but keep these legal concepts in mind: common grantor, Estoppel in pais, parol agreement, acquiescence. You would need to speak with an attorney about your situation to know what your rights and options are in this matter. You also need to find out what sort of 'survey' your neighbor has...if it is a Record of Survey then it has to be recorded with the county and you can get a copy of it - and if the property really was surveyed, and the surveyor knew the fence was substancially off the line, he would have been required by state law to file a ROS. In addition, is it your fence? Did you pay to have it constructed? I wouldn't let him tear down the fence until I knew what the true situation and ownership was...For example, the previously discussed 'adverse possesion' happens automatically - if you meet all the elements, the property becomes yours after the correct statutory period - no court action required for this transfer of ownership - but, to document this change you would need to quiet title in your name via a court action. You might also be able to settle this sort of dispute with a boundary line agreement (a statutory remedy for a disputed or lost line) or a boundary line agreement ( a tool for setting the line in a new place when you know the location of the current line). Speak with a Professional Land Surveyor ( as a Land Surveyor myself, I would be happy to recommend someone in your area) or speak with a real property attorney.
In my experience, the best outcome in these situations occur when the neighbor who wants the fence removed seeks out legal advice to learn more about adverse possession (they typically will not trust what you know about the subject), and the fence owner offers to move the fence if it is a small area of land involved with the neighbor paying the cost to relocate and rebuild the same fence. The neighbor will incur far more expense fighting the issue and if they have lost their land through adverse possession their battle will usually fail. If the area of land is large or critical to your property, then seek out legal advice from an experienced real estate litigation attorney and decide whether the expense of litigation is worth keeping the land.