Constructive Notice and Actual Notice in Civil Lawsuits Differences

It can depend on the type of case and state law

Constructive Notice Explained
••• Constructive Notice Explained. qbanczyk/Getty Images

When someone is being sued in a civil law case, he has a constitutional right to know about it so he can defend himself. The plaintiff—the individual who filed and initiated the lawsuit—can deliver this information in one of two ways: actual notice or constructive notice.

In most cases, state law determines which method must be used. 

What Is Actual Notice? 

Actual notice, sometimes called direct notice, is just what it sounds like: Someone actually hands over notice of the lawsuit in person and in written form. Sometimes the defendant—the individual being sued—must sign an acknowledgment that he did indeed receive the notice and that he understands he's a party in a lawsuit.

In many states, this type of notice must be achieved by a third party, typically a sheriff's officer or a private process server. The plaintiff cannot always personally serve the defendant himself.

When a third party is used, he'll often sign a statement attesting that he did indeed provide the defendant with notice and when he did so. It's typically not necessary for the defendant to sign anything in these cases. The third party's statement can be filed with the court. 

Actual notice is obviously the best way to deliver this type of information because there's no dispute that it was achieved. But what if the other party in a lawsuit can't or won't be located?

In this case, the court might allow you to do the next best thing and give constructive notice.

What is Constructive Notice? 

Constructive notice is a legal term that means someone is assumed to have knowledge of an event or transaction by virtue of the fact that it's in the public record. This principle is based on the premise that someone cannot deny knowledge of a fact because he has a duty to inquire about it.

Constructive notice is sometimes called "legal fiction" because the court presumes knowledge that the defendant might not in fact have. For example, if notice of divorce summons is printed in a local newspaper but the spouse who is being sued for divorce has left the state, how would he know about the legal action? The court nonetheless proceeds on the assumption that the person does indeed know. 

Other Examples of Constructive Notice

If you purchase property, it's presumed that you know the legal status of that property because it's available through public records. A judge will simply say that you should have had a title search done if you later claim that you didn't know the property had liens against it. That's constructive notice. 

The symbol ® provides constructive notice that a trademark or service mark has been registered and that a product or service is not in the public domain. It's not available for anyone to use or profit from.

In some cases, service can be achieved by placing a notice on a door—this is more common in landlord/tenant disputes—or giving the papers to a family member. Both can be considered constructive notice if they're approved by the court or state law.  

Constructive Notice by Publication

One of the most common ways to provide information in a lawsuit is to publicize it and this is often a last-ditch effort. The individual for whom the notice is intended is simply expected to have seen it. 

Many localities require that businesses filing a d/b/a (doing business as) for a business entity must publicize this status in a local newspaper for a specified period of time.

In probate cases, the executor of an estate must usually post a notice in the newspaper that the individual has died, alerting his creditors that they must make a claim to the estate if they want to be paid. Again, the court presumes that anyone who is owed money can—and would want to—keep an eye on these newspaper notices.