J. Nuisance

I. Nuisance (Civil Code, arts. 694-707)

Nuisance (Civil Code, arts. 694-707)

TITLE VIII

NUISANCE (n)

Article 694. A nuisance is any act, omission, establishment, business, condition of property, or anything else which:

(1) Injures or endangers the health or safety of others; or

(2) Annoys or offends the senses; or

(3) Shocks, defies or disregards decency or morality; or

(4) Obstructs or interferes with the free passage of any public highway or street, or any body of water; or

(5) Hinders or impairs the use of property.

Article 695. Nuisance is either public or private. A public nuisance affects a community or neighborhood or any considerable number of persons, although the extent of the annoyance, danger or damage upon individuals may be unequal. A private nuisance is one that is not included in the foregoing definition.

Article 696. Every successive owner or possessor of property who fails or refuses to abate a nuisance in that property started by a former owner or possessor is liable therefor in the same manner as the one who created it.

Article 697. The abatement of a nuisance does not preclude the right of any person injured to recover damages for its past existence.

Article 698. Lapse of time cannot legalize any nuisance, whether public or private.

Article 699. The remedies against a public nuisance are:

(1) A prosecution under the Penal Code or any local ordinance: or

(2) A civil action; or

(3) Abatement, without judicial proceedings.

Article 700. The district health officer shall take care that one or all of the remedies against a public nuisance are availed of.

Article 701. If a civil action is brought by reason of the maintenance of a public nuisance, such action shall be commenced by the city or municipal mayor.

Article 702. The district health officer shall determine whether or not abatement, without judicial proceedings, is the best remedy against a public nuisance.

Article 703. A private person may file an action on account of a public nuisance, if it is specially injurious to himself.

Article 704. Any private person may abate a public nuisance which is specially injurious to him by removing, or if necessary, by destroying the thing which constitutes the same, without committing a breach of the peace, or doing unnecessary injury. But it is necessary:

(1) That demand be first made upon the owner or possessor of the property to abate the nuisance;

(2) That such demand has been rejected;

(3) That the abatement be approved by the district health officer and executed with the assistance of the local police; and

(4) That the value of the destruction does not exceed three thousand pesos.

Article 705. The remedies against a private nuisance are:

(1) A civil action; or

(2) Abatement, without judicial proceedings.

Article 706. Any person injured by a private nuisance may abate it by removing, or if necessary, by destroying the thing which constitutes the nuisance, without committing a breach of the peace or doing unnecessary injury. However, it is indispensable that the procedure for extrajudicial abatement of a public nuisance by a private person be followed.

Article 707. A private person or a public official extrajudicially abating a nuisance shall be liable for damages:

(1) If he causes unnecessary injury; or

(2) If an alleged nuisance is later declared by the courts to be not a real nuisance.

Nuisance is any act, omission, establishment, business, condition of property, or anything else which:

• Injures or endangers the health or safety of others
• Annoys or offends the senses
• Shocks, defies or disregards decency or morality
• Obstructs or interferes with the free passage of any public highway or street, or any body of water
• Hinders or impairs the use of property (Art. 694)

Based on case law, the term nuisance is deemed to be too comprehensive that it has been applied to almost all ways which have interfered with the rights of the citizens, either in person, property, the enjoyment of his property, or his comfort. (Rana v. Wong, G.R. No. 192861, June 30, 2014; G.R. No. 192862 [verification needed])

NOTE: Lapse of time cannot legalize any nuisance, whether public or private

Kinds of Nuisances

• Public (or common) nuisance - affects the public at large or a community or considerable number of persons or their properties. Thus:
• A house constructed partly on a municipal street affects adversely the use of that street by the public; and
• An unsanitary piggery located in residential area emitting offensive odors and pernicious to the health of residents.
• A noisy or dangerous factory in a residential district
• Private nuisance - affects an individual or a limited number of persons only (Art. 695). Examples:
• The wall of a property in danger of collapsing on the adjoining property owned by another person
• Obstruction to the right of way of a property and its residents
• Nuisance Per Se - one which is a nuisance at all times and under any circumstances, regardless of location or circumstances, such as a house constructed on a public street
• Nuisance Per Accidens - nuisance by reason of location, surrounding or in the manner it is conducted or managed. (De Leon, supra, p. 554-555).

A basketball court, an object of recreation in a barangay, is a mere nuisance per accidens and not per se, as it does not pose an immediate danger to safety of persons and property. Hence, it cannot be summarily abated. (Cruz v. Pandacan Hiker's Club, Inc., G.R. No. 188213, January 11, 2016)

NUISANCE PER SE

Nuisance per se is one which is a nuisance at all times and under any circumstances, regardless of location or circumstances, such as a house constructed on a public street or a fishpond obstructing creek.

Squatting is unlawful and the grant of the permits fosters moral decadence. The houses are public nuisance per se and they can be summarily abated, even without the aid of the courts. The squatters can, therefore, be ousted. (City of Manila v. Gerardo Garcia, et al. GR No. L-26053, 1967) Citation verification required: G.R. No. L-26053 (February 21, 1967) is identified as City of Manila v. Villanueva; verify the party names before changing the citation.

NUISANCE PER ACCIDENS

Nuisance per accidens becomes a nuisance by reason of circumstances, location or surroundings.

It is not a nuisance by its nature but it may become so by reason of locality, surrounding, or circumstances (e.g. slaughter house).

LIABILITIES

He who creates a nuisance is liable for the resulting damages and his liability continues as long as the nuisance continues.

Every successive owner or possessor of property who fails or refuses to abate a nuisance in that property started by a former owner or possessor is liable therefor in the same manner as the one who created it (Art. 696).

When successor to the property may be held liable

The successor, to be held liable, must knowingly fail or refuse to abate the nuisance.

NO PRESCRIPTION

Lapse of time cannot legalize any nuisance, whether public or private (Civil Code, Art. 698).

Effect of lapse of time

The action to abate a public or private nuisance is not extinguished by prescription (Art. 1143[2], Civil Code).

REMEDIES AGAINST PUBLIC NUISANCE

The remedies against a public nuisance are:

• Criminal prosecution under the Revised Penal Code or a local ordinance;
• Civil action, including damages;
• Abatement without judicial proceedings, subject to the requirements of Civil Code, Arts. 699–704; a nuisance per accidens generally requires prior adjudication.

Abatement is the exercise of police power which includes the right to destroy property regarded as a public health and safety, and an owner is not entitled to compensation for property justifiably condemned or seized by competent authority in the interest of health, safety, or security, unless the owner shows that the action was unjustified (Civil Code, Art. 436).

REMEDIES AGAINST A PRIVATE NUISANCE

The remedies against a private nuisance are the same as in the case of public nuisance, except that criminal prosecution is not allowable. Hence the only remedies are a civil action and abatement without judicial proceedings (extrajudicial abatement) (Art. 705)

Effects on Owners

When competent authority condemns or seizes property in the interest of health, safety, or security, its owner is not entitled to compensation unless the owner shows that the action was unjustified. (Art. 436)

A successive owner or possessor who fails or refuses to abate a nuisance started by a former owner or possessor is liable for it in the same manner as the person who created it. (Art. 696)

The successor, to be held liable, must knowingly fail or refuse to abate the nuisance

All Remedies May be Simultaneously Pursued to Remove a Nuisance

Aside from the remedy of summary abatement which should be taken under the parameters stated in Art. 704 (for public nuisances) and Art. 706 (for private nuisances), a private person whose property right was invaded or unreasonably interfered with by the act, omission, establishment, business or condition of the property of another, may file a civil action to recover personal damages.

Abatement may be judicially sought through a civil action therefor if the pertinent requirements under the Civil Code for summary abatement, or the requisite that the nuisance is a nuisance per se, do not concur.

To note, the remedies of abatement and damages are cumulative; hence, both may be demanded. (Rana v. Wong, G.R. No. 192861 (June 30, 2014); additional G.R. No. 192862 requires verification)

CRIMINAL PROSECUTION

Criminal prosecution is only a remedy against a public nuisance. In private nuisance, criminal prosecution is NOT a remedy. However, if indeed a crime has been committed, as defined by the Revised Penal Code, criminal prosecution can proceed. (Paras, p. 751)

JUDGMENT WITH ABATEMENT

Besides being held liable for damages or being sentenced to the penalty, the Court may also order to abate the nuisance.

EXTRAJUDICIAL ABATEMENT

Any person injured by a private nuisance may abate it by removing, or if necessary, by destroying the thing which constitutes the nuisance, without committing a breach of the peace or doing unnecessary injury. However, it is indispensable that the procedure for extrajudicial abatement of a public nuisance by a private person be followed. (Art. 706)

Note: An extrajudicial abatement can only be applied for if what is abated is a nuisance per se and not nuisance per accidens.

Requisites for extrajudicial abatement

• The nuisance must be specially injurious to the private person affected
• No breach of peace or unnecessary injury is committed
• Demand has been made upon the owner or possessor of the property to abate the nuisance
• Demand has been rejected
• Abatement must be approved by the district health officer and executed with the assistance of the local police
• Value of the destruction does not exceed P3,000 (Art. 704)

Note: A private person or a public official extrajudicially abating a nuisance shall be liable for damages to the owner of the thing abated:

• If he causes unnecessary injury;
• If an alleged nuisance is later declared by the courts to be not a real nuisance. (Art. 707)

The special-injury requirement under Article 704 applies to abatement of a public nuisance by a private person, not to DPWH’s authority as a government agency. DPWH’s removal of billboards must have a lawful basis and comply with applicable due-process requirements. (Department of Public Works and Highways v. City Advertising Ventures Corp., G.R. No. 182944, 2016).

NUISANCE

The general rule is that everyone is bound to bear the habitual or customary inconveniences that result from the proximity of others, and so long as this level is not surpassed, he may not complain against them. But if the prejudice exceeds the inconveniences that such proximity habitually brings, the neighbor who causes such disturbance is held responsible for the resulting damage, being guilty of causing nuisance.

There can be no doubt but that commercial and industrial activities which are lawful in themselves may become nuisances if they are so offensive to the senses that they render the enjoyment of life and property uncomfortable. It is no defense that skill and care have been exercised and the most improved methods and appliances employed to prevent such result.

Of course, the creation of trifling annoyance and inconvenience does not constitute an actionable nuisance, and the locality and surroundings are of importance. (Velasco v. Manila Electric Co., G.R. No. L-18390, August 6, 1971, 148-B PHIL 204- 221)

Noise as Nuisance

The fact that the cause of the complaint must be substantial has often led to expressions in the opinions that to be a nuisance the noise must be deafening or loud or excessive and unreasonable. Usually it was shown to be of that character.

The determining factor when noise alone is the cause of complaint is not its intensity or volume. It is that the noise is of such character as to produce actual physical discomfort and annoyance to a person of ordinary sensibilities, rendering adjacent property less comfortable and valuable. If the noise does that it can well be said to be substantial and unreasonable in degree; and reasonableness is a question of fact dependent upon all the circumstances and conditions.

There can be no fixed standard as to what kind of noise constitutes a nuisance. In the absence of evidence that the complainant and his family are supersensitive to distracting noises, it is to be assumed that they are persons of ordinary and normal sensibilities. (Velasco v. Manila Electric Co., G.R. No. L-18390, August 6, 1971, 148-B PHIL 204-221)

Classes of Nuisance

Nuisances may be divided into two classes:

• Nuisances per se; and
• Nuisances per accidens

Nuisances per se are recognized as nuisances under any and all circumstances. Nuisances per accidens are nuisances only because of the special circumstances and conditions surrounding them. (Iloilo Ice and Cold Storage Co. v. Municipal Council of Iloilo, G.R. No. 7012, March 26, 1913, 24 PHIL 471-485) Verify the G.R. number: the decision is identified as G.R. No. L-7012.

Abatement of Nuisances per se

The general welfare clause authorizes the abatement of nuisances without judicial proceedings. This tenet applies to a nuisance per se, or one which affects the immediate safety of persons and property and may be summarily abated under the undefined law of necessity. (Monteverde v. Generoso, 52 Phil. 123, 1928; Estate of Francisco v. Court of Appeals, G.R. No. 95279, July 25, 1991, 276 PHIL 649-656)

Abatement of Nuisance per accidens

If it be a nuisance per accidens, or by its nature, it cannot be said to be injurious to rights of property, health, or comfort of the community, it may then be so proven in a hearing conducted for that purpose. A nuisance per accidens is not per se a nuisance warranting its summary abatement without judicial intervention. (Estate of Francisco v. Court of Appeals, G.R. No. 95279, July 25, 1991, 276 PHIL 649-656)

While the Sangguniang Bayan may provide for the abatement of a nuisance, it cannot declare a particular thing as a nuisance per se and order its condemnation. The nuisance can only be so adjudged by judicial determination.

Municipal councils do not have the power to find as a fact that a particular thing is a nuisance when such thing is not a nuisance per se; nor can they authorize the extra judicial condemnation and destruction of that as a nuisance which, in its nature, situation or use is not such. These things must be determined in the ordinary courts of law. (Iloilo Ice and Cold Storage Company v. Municipal Council of Iloilo, 24 Phil. 47, 1913; Estate of Francisco v. Court of Appeals, G.R. No. 95279, July 25, 1991, 276 PHIL 649-656)