Nuisance

Question 1

What is a nuisance?

Answer 1

Art. 694, CC
A NUISANCE is any act, omission, establishment, 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 free passage of any public highway or street, or any body of water; or
5. Hinders or impairs the use of property

Question 2

Does a municipal body have the power to find as fact that a particular thing is nuisance?

Answer 2

NO.

A municipal body has the power to declare and abate nuisances. BUT it has no power to find as fact that a particular thing is a nuisance. The determination of whether or not a nuisance exists is a judicial function, because to declare something a nuisance is to deprive its use. [Iloilo Cold Storage v Mun. Council of Iloilo, G.R. No. L-7012 (1913)].

Question 3

What is the power of a municipal body with regards to nuisances?

Answer 3

A municipal body has the power to declare and abate nuisances.

A municipal body has the power to declare and abate nuisances. BUT it has no power to find as fact that a particular thing is a nuisance. The determination of whether or not a nuisance exists is a judicial function, because to declare something a nuisance is to deprive its use. [Iloilo Cold Storage v Mun. Council of Iloilo, G.R. No. L-7012 (1913)].

Question 4

What is the difference bet. Nuisance and Trespass?

Answer 4

Nuisance:
Use of one’s own
property in such a manner as to cause injury to the property or right or interest of another, and generally results from the commission of an act beyond the limits of the property affected.

Trespass:
Direct infringement of another’s right of property.

Question 5

What is the difference bet. Nuisance and Trespass re. injury?

Answer 5

Nuisance:
Injury is consequential.

Trespass:
Injury is immediate.

Question 6

What is the difference bet. Nuisance and Negligence ?

Answer 6

Nuisance:
Whether it was
unreasonable for the defendant to act as he did in view of the threatened danger or harm to one in plaintiff’s position.

Negligence:
Whether the defendant’s use of his property was unreasonable as to plaintiff, without regard to foreseeability of injury.

Question 7

What is the difference bet. Nuisance and Negligence re liability?

Answer 7

Nuisance:
Liability for the resulting injury to others regardless of the degree of care or skill exercised to avoid such injury.

Negligence:
Liability is based on a want of proper care

Question 8

What is the difference bet. Nuisance and Negligence re when principles ordinarily apply?

Answer 8

Nuisance:
Principles ordinarily
apply where the cause of action is for continuing harm caused by continuing or recurrent acts which cause discomfort or annoyance to plaintiff in the use of his property.

Negligence:
Principles ordinarily
apply where the cause of action is for harm resulting from one act which created an unreasonable risk of injury.

Question 9

What are the classifications of Nuisance?

Answer 9

a. according to nature
- per se
- per accidens

b. according to scope of injurious effects
- public
- private

Question 10

What is a Per se Nuisance?

Answer 10

An act, occupation or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings

The wrong is established by proof of the mere act. It becomes a nuisance as a matter of law.

Question 11

What is an Per accidens Nuisance?

Answer 11

One that becomes a nuisance by reason of circumstances
and surroundings.

Proof of the act and its consequences are necessary.

Question 12

What is the test in determining the scope of injurious effects of a nuisance?

Answer 12

Test: Not the number of persons annoyed but the possibility of annoyance to the public by the invasion of its rights – the fact that it is in a public place and annoying to all who come within its sphere.

Question 13

What is the difference between a Nuisance per se and per accidens?

Answer 13

Per Se:
An act, occupation or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings

Per Accidens:
One that becomes a nuisance by reason of circumstances
and surroundings.

Question 14

What are the types of nuisance according to the scope of injurious effects?

Answer 14

a. Public

b. Private

Question 15

What is a Public Nuisance?

Answer 15

Nuisance that affects a community or neighborhood or any considerable number of persons [Art. 695, CC].

Public nuisances are indictable (person liable may be charged with a crime).

Question 16

What is a Private Nuisance?

Answer 16

One which violates only private rights and produces damages to but one or a few specific persons.

Question 17

What is the Doctrine of Attractive Nuissance?

Answer 17

One who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play, and who fails to exercise ordinary care to prevent children from playing therewith 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. [Jarco Marketing Corp. v. CA, G.R. No. 129792 (1999)]

Question 18

What is the Reason for the Doctrine of Attractive Nuissance?

Answer 18

Reason for doctrine: Although the danger is apparent to those of age, it is so enticing or alluring to children of tender years as to induce them to approach (Ibid).

Note: The attractive nuisance doctrine is generally not applicable to bodies of water in the absence of some unusual condition or artificial feature.

Question 19

Is a swimming pool an attractive nuissance?

Answer 19

NO.

A swimming pool is not an attractive nuisance, for while it is attractive, it is merely a duplication of a work of nature [Hidalgo Enterprises v. Balandan, G.R. L3422, (1952)]

Question 20

Who are liable in case of nuisance?

Answer 20

a. Person responsible for creating the nuisance

b. 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, CC]

– Provided that he knew of the nuisance.
– “To render the new owner or possessor liable, it is necessary that he has actual knowledge of the existence of the nuisance, and that it is within his power to abate the same.
– If he cannot physically abate the nuisance without legal action against another person, then he shall not be liable for such nuisance.

Question 21

What is the nature of the liability of those who participate in the creation or maintenance of a nuisance?

Answer 21

All persons who participate in the creation or maintenance of a nuisance are jointly and severally liable for the injury done.

If 2 or more persons who create or maintain the nuisance act entirely independent of one another, and without any community of interest, concert of action, or common design, each is liable only so far as his acts contribute to the injury.

Question 22

When is there solidary liability for causing a nuisance?

Answer 22

For solidary liability, there must be some joint or concurrent act or community of action or duty, or the several wrongful acts done at several times must have concurred in their effects as one single act to produce the injury complained of.

If there exists a common design, or some joint or concurrent act or community of action or duty, or several wrongful acts done at several times which have concurred in their effects as one single act to produce the injury complained of, liability is solidary

Question 23

Does abatement of a nuisance preclude the right to damages?

Answer 23

NO.

The abatement of a nuisance does not preclude the right of any person injured to recover damages for its past existence. [Art. 697, CC]

Abatement and damages are cumulative remedies.

Question 24

Is there prescription to abate a nuisance?

Answer 24

NO.

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

Question 25

Is there acquisitive prescription for the right to use of the property that creates such nuisance?

Answer 25

NO. Lapse of time cannot legalize any nuisance [Art. 698, CC]

Question 26

What are the remedies against a public nuisance?

Answer 26

1. Prosecution under the Penal Code or any local ordinance; 2. A civil action; or 3. Extrajudicial abatement

Question 27

What are the requirements for extrajudicial abatement of nuisance?

Answer 27

* It must be reasonably and efficiently exercised * Means employed must not be unduly oppressive on individuals, and * No more injury must be done to the property or rights of individuals than is necessary to accomplish the abatement. * No right to compensation if property taken or destroyed is a nuisance.

Question 28

Is there a right to compensatoin for property taken or destroyed for the purpose of abating a nuisance?

Answer 28

NO. Property taken or destroyed for the purpose of abating a nuisance is not taking for public use; thus, there is no obligation to make compensation for such taking.

Question 29

What power is exercised when there is extrajudicial abatement of nuisance by the State?

Answer 29

Police Power of the State The police power of the State includes the right to destroy or abate by summary proceeding whatever may be regarded as a public nuisance

Question 30

What are the processes for extrajudicial abatement against public nuisance?

Answer 30

1. The district health officer shall take care that one or all of the remedies against a public nuisance are availed of. [Art. 700, CC] 2. The district health officer shall determine whether or not abatement, without judicial proceedings, is the best remedy against a public nuisance. [Art. 702, CC]

Question 31

What are the processes for judicial abatement (through civil action) against public nuisance?

Answer 31

General Rule: 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. [Art. 701, CC] Exception: A private person may file an action on account of a public nuisance if it is especially injurious to him. [Art. 703, CC]

Question 32

Who shall commence the civil action for the maintenance of a public nuisance?

Answer 32

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. [Art. 701, CC]

Question 33

What is the exception to the rule that the mayor shourld bring the civil against public nuisance?

Answer 33

Exception: A private person may file an action on account of a public nuisance if it is especially injurious to him. [Art. 703, CC]

Question 34

What is the rationale for the exception that a private person may file an action on account of a public nuisancd if it is injurious to him?

Answer 34

Rationale for Exception: An individual who has suffered some special damage different from that sustained by the general public may maintain a suit in equity for an injunction to abate it, or an action for damages which he has sustained. The action becomes a tort if an individual has suffered particular harm, in which case the nuisance is treated as a private nuisance with respect to such person.

Question 35

What are the requisites of the right of a private individual to bring a civil action to abate a public nuisance?

Answer 35

[Art. 704, CC] 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 P3000.

Question 36

What are the rules in the right of private individuals to bring to civil action to abate a public nuisance?

Answer 36

1. The right must be exercised only in cases of urgent or extreme necessity. The thing alleged to be a nuisance must be existing at the time that it was alleged to be a nuisance. 2. A summary abatement must be resorted to within a reasonable time after knowledge of the nuisance is acquired or should have been acquired by the person entitled to abate. 3. The person who has the right to abate must give reasonable notice of his intention to do so, and allow thereafter a reasonable time to enable the other to abate the nuisance himself. 4. The means employed must be reasonable and for any unnecessary damage or force, the actor will be liable. The right to abate is not greater than the necessity of the case and is limited to the removal of only so much of the objectionable thing as actually causes the nuisance. 5. The property must not be destroyed unless it is absolutely necessary to do so.

Question 37

What are private nuisance?

Answer 37

That which is not included in the definition of a public nuisance [Art. 695, CC]

Question 38

What are the remedies against a private nuisance?

Answer 38

[Art. 705, CC] 1. A civil action; or 2. Extrajudicial abatement

Question 39

What are the requisites for a valid extrajudicial abatement of private nuisance?

Answer 39

[Art. 706, CC] a. The procedure for extrajudicial abatement of a public nuisance by a private person will also be followed. Note: see Municipal health officer under Art. 700 and Art. 702. b. No breach of peace or doing unnecessary Injury.

Question 40

What are the liability for invalid extrajudicial abatement?

Answer 40

damages | whether private person or public official

Question 41

When is the person (whether private person or public official) extrajudicially abating a nuisance liable for damages?

Answer 41

He is liable for damages: a. If he causes unnecessary injury; or b. If an alleged nuisance is later declared by the courts to be not a real nuisance.

Question 42

What are the remedies of the owner of the property seized or destroyed to abate a nuisance?

Answer 42

A person whose property is seized or destroyed as a nuisance may resort to the courts to determine whether or not it was in fact a nuisance. a. An action for replevin; b. To enjoin the sale or destruction of the property; c. An action for the proceeds of its sale and damages if it has been sold; or d. To enjoin private parties from proceeding to abate a supposed nuisance.