Constructive Notice and Actual Notice in Civil Lawsuits

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

In civil law cases between two parties, sometimes one party needs to notify the other of something. In many cases, the notification is to let the other party know that a lawsuit has been filed against him or her. There are two ways to deliver this information: actual notice and constructive notice. 

What is Actual Notice? 

Just as it sounds, it is the handing over of notice, in person in written form, with signature required, to a party in a lawsuit.

Sometimes actual notice is called direct notice. Actual notice is obviously the best way to deliver this information because there is no dispute that it was delivered. It's difficult to deny that you received a notice when you have to sign for it. 

But what if the other party in a lawsuit can't be reached? Maybe they left town or are just ignoring the fact that a process server is at their door. In this case, you have to go to the next best thing - constructive notice. 

What is Constructive Notice? 

Constructive notice is a legal term meaning that persons are assumed to have knowledge of something by virtue of the fact that it is in the public record. This principle means that someone cannot deny knowledge of a fact because they have a duty to inquire.

Constructive notice is sometimes called a "legal fiction" because the court presumes knowledge that someone may not have. For example, if a notice of divorce summons is printed in a local paper, and the party being served has left the state, it's difficult to see how that party could know about the action.

But the court acts on the assumption that the person knows. 

Examples of Constructive Notice

Here are some examples of how constructive notice might be given: 

  • If you purchase property, you are presumed to know the legal status of that property because it is available through public records. If you say you didn't know the property had liens on it, a judge could say you should have checked. That's constructive notice. 
  • In another example, the symbol ® provides constructive notice that a trademark or service mark has been registered and that it is not in the public domain and thus available for anyone to use.
  • A service of a legal party by putting a notice on a door or by serving the papers to a family member would be another example of constructive notice. 

Constructive Notice by Publication

One of the most common ways to provide information is to publicize it. The individual (or group of individuals) for whom the notice is intended are expected to have seen it. 

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

Court actions - divorces granted, for example - are also publicized as a form of constructive notice. 

In small claims court, it's often difficult to get a defendant to accept legal process service, so constructive receipt by publication is the only