Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the August 20, 2015 mailing of "Constructive Notice":

"Undisputed Ignorance" Is No Defense

Distant cousins suddenly showed up when they discovered they were heirs to a portion of Great-Grandpas farm.

The cousins-in-possession (Bailey) claimed they had acquired their cousins (Littleton) tenancy-in-common interests by constructive ouster and prescriptive possession that began in 1957. This is the usual scenario. The twist came when Littleton defended by claiming theirundisputed ignorance of their interests until very recently constituted adisability, which prevented the statute of limitations or laches from running against them.

Despite prevailing in the trial court and intermediate appellate court, Littleton was shot down by the Tennessee Supreme Court. “’Disability, in the context of title by prescription, is either a disability by minority or by incapacitythat is, because of age or mental capacity, a non-possessing co-tenant is unable to file suit to assert his or her rights. The Court declined to extend disability to include ignorance of law or fact, stating that such a holding would be contrary to the long-held public policy of this state to quiet the title of real property. Roberts v. Bailey, No. E2013-01950-SC-R11-CV (Tenn. July 31, 2015).


The discovery rule can toll a statute of limitation. But it applies primarily to tort causes of action, where the harmful conduct or its consequences are hidden from the plaintiff through no fault of his own. In Roberts, the Court took pains to point out thatknowledge of the law is presumed and there is constructive notice of the status of property by virtue of recordation. Thus, Littleton could not hide behind an ignorance that could have been overcome by diligent inquiry.