Nuisance

What is a nuisance and what are the kinds of nuisance? What kind of nuisance may be summarily abated under the law of necessity? These are some of the questions answered in this case of Emil, the registered owner of a 375 square meters prime lot situated in 746 EDSA, Quezon City.

Sometime in 1965, Emil decided to construct a two-story building on his property. At that time, Quezon City had an existing Ordinance No. 2904 passed way back in 1956 requiring property owners along EDSA to construct an arcade over his property or a portion above the first floor of the building projecting over the sidewalk beyond the first story wall with a width of 4.50 meters and height of 5.00 meters as protection for pedestrians against rain or sun. Under this ordinance, building owners are not allowed to construct his wall up to edge of his property line facing the sidewalk, thus creating a space or shelter under the first floor for use as an arcade for pedestrians instead of using it for their own purposes.

Considering that there is already a three meter sidewalk in front of his property line where the said arcade can be built, Emil requested that he be exempted from constructing an arcade on the two-storey building being constructed on his property or from application of Ordinance No. 2904 as amended.

On February 6, 1966, The City Council acted favorably on Emil’s request and issued Resolution No. 7161 S. 66 “subject to the condition that upon notice by the City Engineer, the owner shall, within reasonable time, demolish the enclosure of said arcade at his own expense when public interest so demands.”

Thereafter Emil enjoyed the use and the fruits of his building. But decades after, when a National Building Code (NBCP) was already in effect and when Metro Manila Development Authority (MMDA) was already created, Emil’s trouble began. In March 2003, the MMDA conducted operations to clear obstructions along sidewalks of EDSA in Q.C. pursuant to its Council’s Resolution No. 02-28 S.2002 authorizing it to “ clear the sidewalks, streets, avenues, alleys, bridges, parks and other public places” of all illegal structures and obstructions”.

On April 28, 2003, the MMDA sent notice of demolition to Emil alleging that a portion of his building violated the NBCP in relation to Ordinance No. 2904 and gave him 15 days to clear the portion of his building that was supposed to be an arcade. And when Emil did not comply, the MMD proceeded to demolish the party wall or the “wing walls” of the ground floor structure. The affected portion was then being used as a restaurant.

This prompted Emil to sue the Q.C. government and MMDA seeking, among others, payment of damages for the demolition. The City Government washed its hands off and stated that the demolition was undertaken by the MMDA only without its participation and or consent. MMDA on the other hand claimed that the portion of the building is a nuisance per se which it could summarily demolish. Was the MMDA correct?

No. Article 694 of the Civil Code defines nuisance as any act, omission, establishment, business, condition or property or anything else that: (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; or (5) hinders or impairs the use of property. A nuisance may be per se or per accidens. A nuisance per se is that which affects the immediate safety of persons and property and may summarily be abated under the undefined law of necessity.

The fact that in 1966, the City Council gave Emil an exemption from constructing an arcade is an indication that the wing walls of the building are not nuisance per se. When Emil was given a permit to construct the building, the City Engineer did not consider the building or its demolished portion to be a threat to safety persons or property. The wing walls of the building do not per se immediately and adversely affect the safety of persons and property. An ordinance may declare a structure illegal but that does not make the structure a nuisance. Only the courts of law, not the MMDA or the City Council can declare a thing a nuisance. So the MMDA should immediately restore to its original condition the party wall or wing wall of Emil’s building which it destroyed. This is the ruling in Gancayco vs. City Government of Q.C. and MMDA, G.R. 177807, October 11, 2011, 658 SCRA 853.

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