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Notice

From lawbrain.com

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.

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