Constructive Notice

, , , and | June 27, 2024 | Property

At the 2024 Annual Meeting last month, Restatement of the Law Fourth, Property, Tentative Draft No. 5 (TD No. 5) was approved by ALI membership, subject to the discussion at the meeting and usual editorial prerogative. The below black letter is excerpted from this draft, which contains § 3.2. Constructive Notice from Volume 5, Division IV, Chapter 3. Types of Notice.

§ 3.2. Constructive Notice

A person has constructive notice of an adverse interest affecting real property if:

(a) the person has implied notice of the interest, because the person has acquired knowledge of particular facts related to the interest in question, facts that would provoke a person of common sense and prudence to make reasonable inquiries that would have led to the discovery of the adverse interest; or

(b) the person has inquiry notice of the interest, because a person conducting standard due diligence with common sense and prudence would have discovered the adverse interest; or

(c) the person has record notice of the interest, because a document evidencing an adverse interest is recorded in the chain of title to the property.

The above text does not incorporate edits made subject to the discussion at the meeting and usual editorial prerogative.

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Maureen E. Brady

Associate Reporter, The Restatement of the Law Fourth, Property

Maureen (Molly) E. Brady is an assistant professor of law at Harvard Law School, where she teaches property law and related subjects. Her scholarship uses historical analyses of property institutions and land use doctrines to explore broader theoretical questions. Her current research projects involve the evolution of nuisance rules, the privatization of public space, and state constitutional takings law.

Sara C. Bronin

Associate Reporter, The Restatement of the Law Fourth, Property

Sara Bronin is a Professor at Cornell University and Associate Member of Cornell Law School. She is a Mexican-American architect and attorney whose interdisciplinary research focuses on how law and policy can foster more equitable, sustainable, well-designed, and connected places. 

Henry E. Smith

Reporter, The Restatement of the Law Fourth, Property

Henry Smith is the Fessenden Professor of Law at Harvard Law School, where he directs the Project on the Foundations of Private Law. Professor Smith has written primarily on the law and economics of property and intellectual property, with a focus on how property-related institutions lower information costs and constrain strategic behavior.

Thomas W. Merrill

Associate Reporter, The Restatement of the Law Fourth, Property

Thomas W. Merrill is the Charles Evans Hughes Professor of Law at Columbia Law School. He writes widely in the fields of property and administrative law. Professor Merrill served as the deputy solicitor general for the Department of Justice in the late 1980s. He previously worked for the firm Sidley, Austin, Brown & Wood in Chicago.

Pauline Toboulidis

The American Law Institute