constructive notice

Definition of constructive notice

Noun

constructive notice (uncountable)

1. (law) Notice of a fact which is created by operation of law, despite a lack of actual notice.

Usage notes

This term is most frequently used in the context of statutes, under which a party which must have notice before a legal action can be taken against it is deemed to have such notice if the party wishing to take that legal action follows steps set forth in the statute. For example, if a defendant in a civil lawsuit can not be found, the plaintiff may often serve constructive notice by publishing an announcement about the lawsuit in an approved newspaper. When a party receives a United States trademark registration, everyone else in the country is deemed to have notice that the mark is in use by the registrant.

Further reading

Constructive notice also known as the Doctrine of Constructive Notice is a legal fiction used in the law of both common law and civil law systems to signify that a person or entity is legally presumed to have knowledge of something, even if they have no actual knowledge of it.

Real property

In the well-known case, Sunborn v. McLean, the defendants McLeans decided to build a gas station on their lot in a suburban subdivision in the 1920's Detroit. As it turned out, of the 91 lots sold in the subdivision, 53 incorporated a "reciprocal negative easement" (real covenant) restricting lot use to residential purposes only. Although the McLeans' lot was among those that had no such restriction, and no written notice of it existed anywhere, the Supreme Court of Michigan held that the McLeans had Constructive Notice as a quick look at their neighborhood would tell them that this was a residential-only area. The legal fiction of a constructive notice of reciprocal covenants violates the Statute of Frauds, and many other courts refused to take this approach (Sprague v. Kimball - Mass., Riley v. Bear Creek - Cali.)

In tort

Constructive notice in the American legal system can be used to impose liability for negligence in tort actions against landholder defendants. When there is no actual notice to a defendant of a hazardous condition, there may nevertheless be constructive notice. If the defendant would have been aware of the condition by being reasonably attentive, the defendant has constructive notice.

Service of process

Another common example of constructive notice is found in the law of civil procedure. Where a plaintiff files a lawsuit, but is unable to effect service of process on the defendant because the defendant is in hiding, or their whereabouts are unknown, most states permit the plaintiff to give constructive notice by either posting an announcement of the suit on property known to be owned by the defendant, or by publishing the notice in a local newspaper. Even if the defendant never sees the notice (or, at least, if it can not be proven that the defendant saw it), the court will go forward with the case as though the defendant was fully aware of the proceedings. In such a case, however, the defendant can later challenge the jurisdiction of the court to hear the case, at which time the plaintiff usually has to prove that he tried to effect service of process by other means, and was unable to do so. A "lis pendens" notice is a document filed in the public records which, according to the laws of many states, provides constructive notice of pending litigation which could affect title to the property.

Various forms of constructive notice have been challenged in the United States Supreme Court as violating due process. While the Court has generally upheld such practices, there have been some exceptions to this in which the court has held that notice must be reasonably calculated to reach known parties to a proceeding.