Are you a nuisance ?

Many of us have had personal experiences, or at least have heard stories of neighbors disrupting the peace. For instance, some might have karaoke parties at full volume, waking everyone or keeping them up late into the night. There’s also the frustration of finding a neighbor’s car outside, blocking the driveway, and preventing you from driving your vehicles out. Other times, a neighbor might build a massive, unsightly structure, casting a shadow over your property or blocking your view.

Any of these things would surely make one exclaim buwisit!. Istorbo, pampayamot, kayamut-yamut, panggulo, or pambubuwisit. These are among the Tagalog translations of the English word “nuisance”.

The word “nuisance” has a special place in the New Civil Code of the Philippines and it is defined as “any act, omission, establishment, business, condition of property, or anything else which:

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

The Supreme Court has also defined “nuisance” as something that is deemed to be “so 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, et al., GR 192861, June 30, 2014)

A nuisance can be classified in two ways, (1) according to the object it affects; or (2) according to its susceptibility to summary abatement. (Cruz, et al. v. Pandacan Hiker’s Club, Inc., GR 188213, January 11, 2016)

A nuisance could either be a public nuisance or a private nuisance.

A public nuisance is one that 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.

On the other hand, a private nuisance is one that violates only private rights and produces damage to but one or a few persons. (Art. 695, Civil Code)

Nuisances are also classified as nuisance per se and nuisance per accidens.

A nuisance per se is one that affects the immediate safety of persons and property such that it may be summarily abated or removed or stopped without prior judicial permission, the removal of which is called “abatement of nuisance.”

A nuisance per accidens is one that might be considered as a nuisance but it would depend on certain conditions and circumstances. Whether or not it will be considered a nuisance is a question of fact. Because of this, it cannot be abated, stopped, or removed without due hearing and court proceedings to determine whether it is a nuisance and must be properly abated.

There is this case where the barangay captain in the City of Manila happened to pass by a group of people playing basketball along Central Street in Pandacan, Manila. The barangay captain admonished the players, telling them they had no right to play basketball there, and instructed one of her tanods to destroy the basketball ring. (Cruz, et al. v. Pandacan Hiker’s
Club, Inc., GR 188213, January 11, 2016)

The Pandacan Hiker’s Club Inc., claiming it was the owner of the court, filed a case against the barangay captain with the Office of the Ombudsman.

In her defense, the barangay captain claimed that the basketball court affected the peace in the barangay, and was the subject of many complaints from residents asking for its closure. It was blocking jeepneys from passing through, was the site of rampant betting and fights involving persons within and outside of the barangay, was noisy causing lack of sleep among some residents, and some users would urinate there.

The barangay captain also claimed that the court was once padlocked but this was removed by the club without returning
the steel bar and padlock.

The Office of the Ombudsman dismissed the case against the barangay captain, finding that the act of destroying the basketball ring was only motivated by the barangay captain and the tanods performing of their sworn duty, as defined in the Local Government Code.

The Supreme Court, affirming the Court of Appeals, reversed the dismissal by the Ombudsman and found the barangay captain liable for conduct prejudicial to the best interest of the service, and suspended her. It found that there was no factual finding that the basketball ring was a nuisance per se, making it susceptible to summary abatement, therefore it was a mere nuisance per accidens which did not pose an immediate effect upon the safety of persons and property.

Some examples of nuisance per se that were cited were a mad dog on the loose, which may be killed “on sight because of the immediate danger it poses to the safety and lives of the people, pornographic materials, contaminated meat, and narcotic drugs which are inherently pernicious and which may be summarily destroyed, and a filthy restaurant which may be summarily
padlocked in the interest of public health.

A basketball ring without a factual finding that poses an immediate danger to persons or property may not be abated as a nuisance without the benefit of a judicial hearing.

Moreover, even if the basketball ring or court was a nuisance per se, the court found that the barangay captain failed to observe the proper procedure as abatement without judicial proceeding of a public nuisance is the responsibility of the district health officer who is also the official who shall determine whether or not abatement is the best remedy against a public nuisance. (Art. 700 and 702, Civil Code)

The barangay captain was also not able to cite any barangay or city ordinance that was violated, which would have justified summary abatement of a nuisance under the general welfare clause of the Local Government Code.

Lastly, even if the action of the barangay captain was made to maintain order, it was done excessively, since a less damaging action such as padlocking or removal of the basketball ring would have achieved the same purpose.

Private persons are, under the Civil Code, given the authority to abate a public nuisance. Art. 704 of the Civil Code provides that any private person may abate a public nuisance that is 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 that:

1. Demand be first made upon the owner or possessor of the property to abate the
nuisance
2. demand has been rejected
3. Abatement be approved by the district health officer and executed with the
assistance of the local police
4. The value of the destruction does not exceed P3,000

On the other hand, the remedy against a private nuisance is to file a civil action for damages or file an action with the courts for abatement of the nuisance.

There is also the Doctrine of Attractive Nuisance which provides that 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, even if the child is technically a trespasser in the premises.

In the case of Aleta v. Sofitel Philippine Plaza Manila (GR 228150, January 11, 2023), the Supreme Court declared that the hotel installed two slides with slopes ending at the kiddie pool. Because the kiddie pools were close to the slides it formed an unusual feature that tended to attract children. This was considered an attractive nuisance and the hotel was duty-bound to undertake protective measures and guarantee that these were in place to protect children against the danger.

(The author, Atty. John Philip C. Siao, is a practicing lawyer and founding Partner of Tiongco Siao Bello & Associates Law Offices, an Arbitrator of the Construction Industry Arbitration Commission of the Philippines, and teaches law at the De La Salle University Tañada-Diokno School of Law. He may be contacted at [email protected]. The views expressed in
this article belong to the author alone.)