You Know What You Know – Actual and Constructive Notice Confuses the Best

elderly couple reviewing paperwork at a table

What do you know? 

It is a fair question to which the law gives an unfair answer. Under the law, you are charged with knowing facts even if you do not know them.  

There are basically two kinds of notice under the law: actual and constructive. Actual notice means things that you have express information about. It includes things you saw or felt or experienced or heard. 

Actual Notice

Actual notice also means something that is a bit more difficult to pinpoint. It means things that you may not actually know, but that you had a duty to follow up and find out. It includes things that you should have been alerted to and, if you had simply looked or researched, would have found. If, for example, you received a notice of an event but it had the wrong date, then you would have a duty to look further and find the right date. You cannot take the position that you did not know about the event. 

To trigger this duty to investigate, the notice must be something that would normally excite investigation. You do not have a duty to follow up on “mere rumors, vague statements, and circumstances that are dubious or equivocal.” This type of actual notice is sometimes called “inquiry notice” because you have a duty to inquire further.

As you might suspect, inquiry notice is fact specific and often litigated.  

Constructive Notice

Constructive notice is completely different. It is a notice that you are legally presumed to have even if you do not have it. It often comes up in the context of real estate.  For example, an instrument recorded in the deed records in the proper county is notice to all persons of its existence.  If there is a lien against your property that is in writing and recorded in the county where your property is located, then you have constructive notice of the lien. 

Constructive notice of a properly recorded document is binding upon you even if you do not have actual notice of the document.

Confused? You are not alone. There are a lot of appellate cases on notice because it is a bewildering concept.  

Notice Issues

Aside from real estate, the notice issue often comes up in fiduciary litigation – suing executors, trustees, agents, and the like. That is because the types of actions that can be brought against a fiduciary can be barred by the passage of time. This is known as the Statute of Limitations. The Statute of Limitations begins when the actual injury occurred. For example, if the fiduciary stole money, then the statute of limitations begins on the date the money was stolen.

The problem, of course, is that the theft often is not discovered until years later – well after the statute of limitations period has expired. To combat this dilemma, the law created a discovery rule that says the limitations period is tolled until the date the theft was discovered. 

What does this have to do with notice? To take advantage of the discovery rule, the injured party – usually a beneficiary – must prove that he or she did not have actual or constructive notice of the theft anytime during the limitations period.

So ask yourself – do you know, have a duty to inquire and therefore should know, or know because the law said you should know?  

If you are baffled, you should heed the words of the great humorist Josh Billings: “It iz better tew know nothing than two know what ain’t so.”

Virginia Hammerle is president of  Hammerle Finley Law Firm. She is an Accredited Estate Planner, has been Board Certified in Civil Trial Law for 25 years, and recognized as a Super Lawyer for the past 10 years. She blogs regularly on senior issues and the law and has a monthly newsletter. Contact at legaltalktexas@hammerle.com.