NUISANCE

NUISANCE
• Applied to class of wrongs which arises
from the unreasonable, unwarrantable, or
unlawful use by a person of his own
property and produces such material
annoyance, inconvenience, discomfort, or
hurt that the law will presume a
consequent damage
• Anything that works an injury, harm or
prejudice to an individual or the public
 CC Definition (Art. 694)
Any act or omission, establishment, 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.
 NUISANCE
 Anything that injures health, endangers
life, offends the senses or produces
discomfort to the community (Sanitation
Code)
 Nuisance distinguished from
tresspass
 Nuisance consists of a use of one’s own
property in such a manner as to cause
injury to the property or other right of
interest of another and generally results
from the commission of an act beyond the
limits of the property affected while
trespass is a direct infringement of
another’s right or property.
 Note:
An encroachment upon the space about
another’s land but not upon the land itself
is a nuisance and not a trespass.

 In trespass, the injury is direct and

immediate; in nuisance, it is
consequential.
 Nuisance distinguished from
negligence
 Nuisance - person whom maintains
nuisance is liable for the resulting injury to
others regardless of the degree of care or
skill exercised to avoid such injury;
negligence – liability is based on want of
proper care
 The creation or maintenance of a nuisance is a
violation of an absolute duty, the doing of an
act which is wrongful in itself, whereas
negligence is a violation of a relative duty, the
failure to use the degree of care required under
a particular circumstances in connection with an
act or omission which is not of itself wrongful.
 Where the damage is the necessary
consequence of what the defendant is
doing, or is incident to the business itself
or the manner in which it is conducted (
whether there is proper care or not), the
law of negligence has no application, and
the law of nuisance applies.
 Application of Rules on
Negligence
These torts- nuisance and injurious
negligent act or omission- may be, and
frequently are, co-existing and practically
inseparable, as where the acts or
omissions constituting negligence also
give rise to nuisance, and it is difficult at
times to distinguish between actions of
nuisance and those based on negligence.
 It has been held that where the acts or
omissions constituting negligence are the
identical acts which, it is asserted, give
rise to a cause of action for nuisance, the
rules applicable to negligence will be
applied.
Example:
The building of a structure may be negligent
and at the same a nuisance rendering the
one creating it liable without proof of
negligence. Where however, the liability of
the lessor of a land or building in a
condition dangerous tot eh health or safety
of the public depends upon whether he
knew, or, with the exercise of due care,
ought to have known, of its dangerous
condition, an action by one injured as a
result thereof may take the form of one for
nuisance or one for negligence.
 Nuisance under the Fire Code of
the Philippines (sec 84, PD 856)
• Public or private premises maintained and used in a
manner injurious to health
• Breeding places and harborages of vermin
• Animals and their carcasses which are injurious to health
• Accumulation of refuse
• Noxious matter or waste water discharged improperly in
streets
• Animals stockage maintained in a manner injurious to
health
• Excessive noise
• Illegal shanties in public or private properties
 NUISANCE UNDER PD 856
(SANITATION CODE)
• Public or private premises maintained and
used in a manner injurious to health
• Breeding places and harborages of
vermin;
• Animals and their carcasses which are
injurious to health
• Accumulation of refuse
• Noxious matter or waste water discharged
improperly in streets
• Animals stockage maintained in a manner
injurious to health
• Excessive noise, and
• Illegal shanties in public or private
properties
 LEGAL EASEMENT
• Every building or piece of land is subject to
the easement which prohibits the
proprietor or possessor from committing
nuisance through noise, jarring, offensive
odor, smoke, heat, dust, water, glare and
other causes (Art 682)
• Subject to zoning, health, police and other
laws, regulations, factories and shops may
be maintained provided the least possible
annoyance is caused to the neighborhood
(Art 683)
 Kinds of Nuisance (Art 695)
• Public Nuisance – affects a community or
neighborhood or any considerable number
of persons although the extent of
annoyance, danger or damage upon
individuals may be unequal
• Private nuisance – one that is not included
in public nuisance
• Public nuisance or common nuisance refers to
the doing of or the failure to do something that
injuriously affects the safety, health or morals of
the public or works some substantial annoyance,
inconvenience, or injury to the public; offense
against public order
• Private nuisance violates only private rights and
produces damages to but one or a few persons
 PUBLIC AND PRIVATE NUISANCES
DISTINGUISHED
 Public nuisance are indictable, whereas
private nuisance are actionable, either for
their abatement or for damages, or both.
Injunctive relief may be granted against a
private nuisance
 TEST OF A PUBLIC NUISANCE
Note:
The distinction between a public nuisance
and a private nuisance does not lie in the
nature or character of the nuisance itself,
but in the extent of its injurious effect.
1. Possibility of injury or annoyance to the
public generally.
i.e : A private basketball court built on
government land devoted to public use,
constitutes a public nuisance as well as
nuisance per se, and therefore , can be
summarily abated. The fact that it is also
used as a venue for public meetings does
not make it less a nuisance.
2. Condition arises out of unlawful acts
Public nuisance always arise out of
unlawful acts, and an act cannot be a
nuisance if it is lawful, or is authorized by a
valid statute or ordinance, or is
imperatively demanded by public
convenience.
 MIXED NUISANCES
• A nuisance may be both public and private
in character; it may be a public nuisance
because it violates public rights to the
injury of many persons, and it may also be
private in character in that it produces
special injury to private rights to any extent
beyond the injury to the public.
EXAMPLES::
1. A house abutting on a street railway tract
is a private nuisance to the railway
company and a public nuisance because
it obstructs the street.
2. Raising and breeding animals ( pigs,
goats, chicken) for commercial purposes
in a vicinity that is fast becoming a
fashionable residential district and where
it is shown that the place where the
 animals are kept are found to be
unsanitary on account of the offensive
odors, pernicious to health, coming from
manure scattered therein, stagnant water,
etc. constitutes both public and private
nuisances.
3. The keeping or storage of gasoline may
constitute a nuisance, either private or
public. Whether or not it becomes a
nuisance depends upon the location, the
quantity, and other surrounding
circumstances. While it would not
necessarily depend upon the degree of
care used in the storage, the manner in
which the tanks are constructed and
operated may be considered( Javier vs
Ozaeta, 64 Phil 626)
 Nuisance per se and nuisance
per accidens
• Nuisance per se (or in law)– is an act , or
structure which is questionably a
nuisance at all times and under any all
circumstances regardless of location or
surroundings.
• It is anything which of itself is a nuisance
because of its inherent qualities,
productive of injury or dangerous to life or
[property without regard to circumstance.
 CASE
 A house of prostitution is a nuisance per
se aside from being a public nuisance.The
same is true of gambling houses.
However, a gas station is not nuisance
per se or one affecting the immediate
safety of persons and property; hence, it
cannot be closed or transferred summarily
to another location(Parayno vs Javellana,
495 SCRA 85, 2006)
 Any and all squatters on government
resettlement projects are likewise
nuisances per se and public nuisance and
they can be abated or ejected without
judicial proceedings ( Mendoza vs NHA,
111 SCRA 637, 1982)
• Nuisance per accidens (in fact) – is an
act, occupation, or structure, not a
nuisance per se, but which may become a
nuisance by reason of circumstances;
location or surroundings; proof of the act
and its consequences is required

Example: Raising and breeding pigs in a

house within city limits is a nuisance per
accidens
NUISANCE PER SE AND NUISANCE
PER ACCIDENS DISTINGUISHED
1. Existence- In the case of a nuisance per
se, the thing becomes a nuisance as a
matter of law. Its existence need only be
proved in any locality, without a showing of
specific damages, and the right to relief is
established by averment and proof of the
mere act.
In nuisance per accidens or in fact, it
depends upon its location and
surroundings, the manner of its conduct or
other circumstances, and in such cases,
proof of the act ad its consequences is
necessary.
2. Abatement
As nuisance per se affects the immediate
safety of persons and property safety of
persons and property, they may be
summarily abated under the undefined law
of necessity.
But , in nusance per accidens, even the
municipal authorities under their power to
• declare and abate nuisances, would not
have the right to compel the abatement of
a particular thing or act as a nuisance
without reasonable notice to the person
alleged to be maintaining or doing the
same at the time and place of hearing
before a tribunal authorized to decide
whether such a thing or act does in law
constitute a nuisance( Monteverde vs
Generoso, 52 Phil 23)
 Noise as Nuisance
When actionable?
A noise may constitute an actionable
nuisance but it must be a noise which
affect injuriously the health or comfort of
ordinary people in the vicinity to an
unreasonable extent.
 Injury to a particular person in a peculiar
position or of specially sensitive
characteristics will not render the noise an
actionable nuisance.
 TEST
The test is whether rights of property,
health, or comfort are so injuriously
affected by the noise in question that the
sufferer is subjected to a loss which goes
beyond the reasonable limit imposed upon
him by the condition of living, or of holding
property, in a particular locality in fact
devoted to uses which involve the
emission of noise although ordinary care is
taken to confine it within reasonable
bounds; or in the vicinity of property of
another owner who through creating a
noise is acting with reasonable regard for
the rights of those affected( Velasco vs
Manila Electric Company, 40 SCRA 342)
NOISE FROM ELECTRICAL MACHINERY
AND APPLIANCES
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. The
determining factor when noise alone is the cause of
complaint is not the 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. ( Velasco vs Manila
Electric Company, 40 SCRA 342)
 Doctrine of Attractive Nuisance

One who maintains on his premises dangerous

instrumentalities of a character likely to attract
children in play and who fails to exercise
ordinary care to prevent children from playing
therein or resorting thereto is liable to a child of
tender years who is injured thereby, even if the
child is technically a trespasser in the premises.
( Hidalgo Enterprise vs Balandan, G.R. NO. L-
3422)
• A swimming pool or water tank is not an
attractive nuisance unless there is some
unusual condition, or artificial feature other
than the mere water and its location.
 ARTICLE 696 CC
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.
Reason: Injurious effect is a continuing one.
 ARTICLE 697 OF THE CC
“The abatement of a nuisance does
not preclude the right of any person
injured to recover damages for its past
existence”.
- The action to abate and the action to
recover damages are two distinct
remedies either or both of which the
plaintiff may pursue at his election.

- the remedies are cumulative, i.e ., both

may be demanded.
 ARTICLE 698 OF THE CC

“Lapse of time cannot legalize any

nuisance, whether public or private.”
General Rule
The right to bring an action to abate a
public or private nuisance is not
extinguished by prescription. Lapse of time
cannot be relied upon to legalize a
nuisance, whether public or private, for no
right can arise from acts or omissions
which are against the law or which infringe
upon the rights of others.
 EXCEPTION:
Article 631(2) provides that easements
are extinguished by obstruction and non-
use for ten years.

Hence, where plaintiff had an easement of

natural drainage over defendant’s land, it
appeared that the dams in question were
constructed in 1937 but the action for their
destruction was filed only in 1951.
It was held that the plaintiff’s action was
barred by prescription even though the
obstruction may be regarded as in the
nature of a nuisance. If the dams were a
nuisance at all, it was due to their
interference with plaintiff’s right of
drainage, but since that right was
extinguished, it ceased to be a nuisance
anymore( Ongsiaco vs Ongsiaco, 101 Phil
1196)
 REMEDIES AGAINST PUBLIC
NUISANCE
• Prosecution under RPC or any local
ordinance (for public only); or
• Civil action; or
• Abatement without judicial proceedings
Note:
The remedies are not exclusive but
cumulative. All of them may be availed of
by the public officers and the last two, by
private, if the nuisance is especially
injurious to the latter( Article 703).
• Local chief executive to commence civil
action( art 701)
• Health officer to take care that remedies
against public nuisance are availed of;
determine whether or not abatement
without judicial proceedings is the best
remedy against a public nuisance( art 700,
702)
• Private person may file an action on
account of a public nuisance especially if
injurious to him (Article 703)
• Note: It does not necessarily follow that
the failure to observe Article 702 is in itself
a ground for the award of damages .Under
Article 707, there are only two cases when
a private person or public official extra-
judicially abating a nuisance shall be
liable for damages.
 Article 707 of the CC
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 real nuisance.
 Police Power of the State
Police power of the state includes the
right to destroy or abate by a summary
proceeding whatever may be regarded as
a public nuisance, and in the exercise of
this power, the legislature may, subject to
constitutional limitations, declare what
shall be deemed a nuisance and provides
for its suppression.
 Right to Compensation
 Property taken or destroyed for the
purpose of abating nuisance is not taken
for public use, and there is accordingly no
obligation to make compensation for such
taking.
 The State may authorize the removal,
destruction or abatement of nuisances
before any judicial decision, and leave the
party to his right to appeal tot eh courts, by
an action for damages, for a determination
of the question whether the thing abated
was a nuisance.
CASES OF SUMMARY ABATEMENT
1. A factory without provision for
accumulation or disposal of waste
matters and constructed without building
permits, contiguously to and therefore,
liable to pollute one of the water pipelines
which supplies potable water to the
Greater Manila area( The Homeowners
Association of El Deposito, barrio Corazon De
Jesus, San Juan Rizal vs Lood,47 SCRA 174).
2. House constructed without governmental
authority, on public streets and
waterways, obstructs at all times, the free
use by the public of said street and
waterways, and accordingly, constitute
nuisance per se aside from being public
nuisance( Sitchon vs Aquino).
 Abatement of nuisance per
accidens
Since they affect the immediate safety of
persons and property, they may be
summarily abated under the undefined law
of neccesity.
ABATEMENT OF PUBLIC NUISANCE
BY PRIVATE PERSON; WAYS
• Removing it; or
• If necessary, by destroying the thing that
constitutes the nuisance without
committing a breach of the peace or
without doing unnecessary injury
 REQUISITES; ABATEMENT BY
PRIVATE PERSON
• Demand be first made upon the owner or
possessor of property to abate;
• Such demand is rejected;
• Abatement is approved by district health
officer and executed with the assistance of
the local police; and
• Value of the destruction does not exceed
P3,000.
• A private person or a public official extra-
judicially abating a nuisance shall be liable
for damages if he causes unnecessary
injury or if an alleged nuisance is later
declared by the courts to be not a real
nuisance
 cases
• GR 184478 – Perez v Madrona, 2012
• GR 177807- Gancayco v QC, 2011
• GR 177933- MDA v Gancayco, 2011