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Notice

NOTICE

Information; knowledge of certain facts or of a particular state of affairs. The formal receipt of papers that provide specific information.

There are various types of notice, each of which has different results. In general, notice deals with information that a party knows or should have known. In this context notice is an essential element of due process. Notice can also refer to commonly known facts that a court or administrative agency may take into evidence.

Actual notice is information given to the party directly. The two kinds of actual notice are express notice and implied notice. An individual is deemed to have been given express notice when he or she actually hears it or reads it. Implied notice is deduced or inferred from the circumstances rather than from direct or explicit words. Courts will treat such information as though actual notice had been given.

Constructive notice is information that a court deems that an individual should have known. According to a rule of law that applies in such cases, the court will presume that a person knows the information because she could have been informed if proper diligence had been exercised. Constructive notice can be based on a legal relationship as well. For example, in the law governing partnerships, each partner is deemed to have knowledge of all the partnership business. If one partner engages in dishonest transactions, the other partners are presumed to know, regardless of whether they had actual knowledge of the transaction. The term legal notice is sometimes used interchangeably with constructive notice.

In certain cases involving the purchase of real property, an individual is charged with inquiry notice. When an individual wishes to purchase land, he ordinarily has the duty under the recording acts to check the title to the property to determine that the land is not subject to any encumbrances, which are claims, liens, mortgages, leases, easements or right of ways, or unpaid taxes that have been lodged against the real property. In some situations, however, the individual must make a reasonable investigation outside of the records, such as in cases involving recorded but defective documents. This type of notice is known as inquiry notice.

Some states have notice recording statutes that govern the recording of land titles. Whereas inquiry notice deals with looking closely at documents that have been recorded, notice recording statutes state that an unrecorded conveyance of property is invalid against the title bought by a subsequent bona fide purchaser for value and without notice. This means that if John purchases a piece of land on a contract for deed from Tom and does not record the contract for deed, and if Tom resells the land to Jill, who has no notice of the prior sale, then Jill as a bona fide purchaser will prevail, and John's conveyance will be invalid.

The concept of notice is critical to the integrity of legal proceedings. Due process requires that legal action cannot be taken against anyone unless the requirements of notice and an opportunity to be heard are observed.

Legal proceedings are initiated by providing notice to the individual affected. If an individual is accused of a crime, he has a right to be notified of the charges. In addition, formal papers must be prepared to give the accused notice of the charges.

An individual who is being sued in a civil action must be provided with notice of the nature of the suit. State statutes prescribe the method of providing this type of notice. Courts are usually strict in requiring compliance with these laws, and ordinarily a plaintiff must put this information into a complaint that must be served upon the defendant in some legally adequate manner. The plaintiff may personally serve the complaint to the defendant. When that is not practical, the papers may be served through the mail. In some cases a court may allow, or require, service by posting or attaching the papers to the defendant's last known address or to a public place where the defendant is likely to see them. Typically, however, notice is given by publication of the papers in a local newspaper. When the defendant is not personally served, or is formally served in another state, the method of service is called substituted service.

Notice is also critical when suing a state or local government. Many states and municipalities have notice of claim provisions in their statutes and ordinances that state that, before a lawsuit is started, a notice of claim must be filed within a reasonable time, usually three to six months after the injury occurs. The notice must contain the date of injury, how it occurred, and other facts that establish that the prospective plaintiff has a viable cause of action against the government. Failure to file a notice of claim within the prescribed time period prevents a plaintiff from filing a lawsuit unless exceptions to this requirement are provided by statute or ordinance.

Notice is also an important requirement in ending legal relationships. For example, a notice to quit is a written notification given either by the tenant to the landlord, or vice versa, indicating that either the tenant intends to surrender possession of the premises on a certain day or that the landlord intends to regain possession of the premises on a certain day. Many kinds of contracts require that similar notice be given to either renew or end the contractual relationship.

Notice may also refer to commonly known facts that a court or administrative agency may take into evidence during a trial or hearing. judicial notice is a doctrine of evidence that allows a court to recognize and accept the existence of a commonly known fact without the need to establish its existence by the admission of evidence. Courts take judicial notice of historical events, federal, state, and international laws, business customs, and other facts that are not subject to reasonable dispute.

Administrative proceedings use the term official notice to describe a doctrine similar to judicial notice. A presiding administrative officer recognizes as evidence, without proof, certain kinds of facts that are not subject to reasonable dispute. Administrative agencies, unlike courts, have an explicit legislative function as well as an adjudicative function: they make rules. In rule making, agencies have wider discretion in taking official notice of law and policy, labeled legislative facts.

cross-references

Due Process of Law; Legislative Facts; Personal Service; Recording of Land Titles; Registration of Land Titles; Service of Process; Title Search.

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notice

no·tice / ˈnōtis/ • n. 1. attention; observation: their silence did not escape my notice | it has come to our notice that you have been missing school. 2. notification or warning of something, esp. to allow preparations to be made: interest rates are subject to fluctuation without notice. ∎  a formal declaration of one's intention to end an agreement, typically one concerning employment or tenancy, at a specified time: she handed in her notice. 3. a displayed sheet or placard giving news or information: the jobs were advertised in a notice posted in the common room. ∎  a small advertisement or announcement in a newspaper or magazine: an obituary notice. ∎  (usu. notices) a short published review or comment about a new film, play, or book: she had good notices in her first film. • v. [tr.] become aware of: he noticed the youths behaving suspiciously| I noticed that she was looking tired | [intr.] they were too drunk to notice. ∎  (usu. be noticed) treat (someone) with some degree of attention or recognition: it was only last year that the singer really began to be noticed. ∎ archaic remark upon: she looked so much better that Sir Charles noticed it to Lady Harriet. PHRASES: at short (or a moment's) notice with little warning or time for preparation: tours may be canceled at short notice. put someone on notice (or serve notice) warn someone of something about or likely to occur, esp. in a formal or threatening manner: we're going to put foreign governments on notice that we want a change of trade policy. take no notice pay no attention to someone or something. take notice pay attention; show signs of interest.

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notice

notice (formal) intimation XV; heed, cognizance XVI; †notion, idea XVII; sign giving information XIX. — (O)F. — L. nōtitia being known, acquaintance, knowledge, notion, f. nōtus known, pp. of nōscere KNOW.
Hence notice vb. †notify XV; mention, refer to XVII; observe, remark XVIII.

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notice

noticeAttis, gratis, lattice •malpractice, practice, practise •Atlantis, mantis •pastis •Lettice, lettuce, Thetis •apprentice, compos mentis, in loco parentis, prentice •Alcestis, testis •poetess • armistice •appendicitis, arthritis, bronchitis, cellulitis, colitis, conjunctivitis, cystitis, dermatitis, encephalitis, gastroenteritis, gingivitis, hepatitis, laryngitis, lymphangitis, meningitis, nephritis, neuritis, osteoarthritis, pericarditis, peritonitis, pharyngitis, sinusitis, tonsillitis •epiglottis, glottis •solstice •mortise, rigor mortis •countess • viscountess •myosotis, notice, Otis •poultice • justice • giantess • clematis •Curtis • interstice • Tethys •Glenrothes • Travis •Jarvis, parvis •clevis, crevice, Nevis •Elvis, pelvis •Avis, Davies, mavis •Leavis • Divis • novice • Clovis •Jervis, service •marquess, marquis

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Notice

NOTICE

When unsure what is right, American society often falls back on a process in which people on all sides of a disputed question have their say before a decision is rendered. Moreover, even if one cannot participate in a governmental decision, our notions of the state require that one know in advance the standards by which officials will judge us. To have one's say or to conform one's behavior to a standard one must know of the proceeding or the standard. Because such knowledge is so essential to this scheme of things, the Constitution at numerous points requires that those affected by governmental actions receive notice.

Clauses as diverse and specific as the requirement that Congress publish a journal and the prohibitions against ex post facto laws and bills of attainder, as well as the more general requirements of the due process clauses require notice in various circumstances. Because of its generality the due process clause has generated most of the litigation about constitutionally required notice. In procedural due process cases courts have struggled to distinguish two situations: those in which persons need have only the opportunity of finding out about contemplated government actions, and situations in which they must receive more individualized attention. The maxim that ignorance of the law is no excuse expresses the proposition that the legislature need not tell each of us that it has passed some law. We rely instead on the hope that our legislators represent us and on the opportunity we have to adjust our behavior after the law takes effect. The Supreme Court has, however, required that laws defining criminal acts be sufficiently specific to enable persons who do look at them to tell what acts are prohibited.

As the focus of government attention narrows from all citizens (the subject of statutes) to more specific contexts, the Constitution requires more elaborate and specific forms of notice, notice that is often linked with a subsequent hearing. Thus the Court has not required the Colorado legislature to notify all the citizens of Denver before altering their property assessments, but it has required notice (and a hearing) for individual property owners on a block to be assessed on the basis of frontage feet. Similarly with administrative or judicial adjudication: persons whose property or liberty stands in jeopardy must receive notice of the threatened governmental action.

Even in such individual adjudication, however, due process requires only that parties who will be bound by official decisions receive the best notice practicable given the circumstances. For example, in a suit to approve the trustee's stewardship of a common trust fund with more than a hundred beneficiaries, the Court required individual notice only to those beneficiaries who could easily be located; members of the group thus notified shared an interest with the unnotified and would represent them, the Court said in Mullane v. Central Hanover Bank Trust (1950).

Once it has notified them with appropriate specificity, government requires much of its citizens; until such notice, however, it can require little.

Stephen C. Yeazell
(1986)

Bibliography

Tribe, Laurence H. 1978 American Constitutional Law. Chap. 10. Mineola, N.Y.: Foundation Press.

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