NUISANCE

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Category: Property, Ownership and Its Modifications

NUISANCE

Art. 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.

Art. 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.

NUISANCE PER SE

  • Always a nuisance

NUISANCE PER ACCIDENS

  • A nuisance only because of the location or other circumstances

PUBLIC NUISANCE

  • Affects a community or neighborhood or any considerable number of persons

PRIVATE NUISANCE

  • That which is not public

ATTRACTIVE NUISANCE DOCTRINE

  • An attractive nuisance is a dangerous instrumentality or appliance which is likely to attract children at play
  • Doctrine: One who maintains on his estate or premises an attractive nuisance without exercising due 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
  • Basis of liability: the attractiveness is an invitation to children
  • A swimming pool or water tank isn’t an attractive nuisance for while it is attractive, it cannot be a nuisance being merely an imitation of a work of nature. Hence, if small children are drowned in an attractive water tank of another, the owner is not liable even if there be no guards in the premises.

Art. 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.

WHEN SUCCESSOR TO THE PROPERTY MAY BE HELD LIABLE

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

RULE IF LESSOR CREATED OR CONTINUES THE NUISANCE

  • He cannot escape liability

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

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

Art. 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.

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

Art. 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.

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

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

Art. 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.

Art. 705. The remedies against a private nuisance are:
(1) A civil action; or
(2) Abatement, without judicial proceedings.

Art. 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.

Art. 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.