The Concept of Nuisance Per Se

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SUBJECT: The Concept of Nuisance Per Se

I. Introduction
This memorandum addresses the legal concept of “nuisance per se” under Philippine civil law. Distinguishing it from a nuisance per accidens is critical for determining the applicable legal remedies, standards of proof, and procedures for abatement. A nuisance per se represents an act, occupation, or structure that is considered a nuisance under any and all circumstances, regardless of location or surrounding conditions, due to its inherent nature which contravenes law, morals, customs, or public safety.
II. Legal Foundation and Definition
The primary statutory foundation is found in Articles 694 and 695 of the Civil Code of the Philippines. Article 694 defines a nuisance as “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.” Article 695 specifically defines a nuisance per se as one “which affects the immediate safety of persons and property, and may be summarily abated under the undefined law of necessity.”
III. Distinction: Nuisance Per Se vs. Nuisance Per Accidens
The distinction is jurisprudentially crucial. A nuisance per se is intrinsically unlawful and injurious. Its character as a nuisance is absolute and not dependent upon the locality or the manner of its operation. Examples include a building erected over a public sidewalk, a facility for criminal activity like an illegal drug den, or a structure that is inherently dangerous and without any legal sanction. In contrast, a nuisance per accidens (or nuisance in fact) is lawful in itself but becomes a nuisance due to its location, manner of operation, or surrounding circumstances. Examples include a lawful factory whose emissions, based on location, cause excessive pollution to a residential area, or a church whose bells cause unreasonable noise at late hours. This distinction dictates the available remedies.
IV. Characteristics of a Nuisance Per Se
Key characteristics include: (a) Inherent Illegality: The act or structure is prohibited by law, ordinance, or regulation, or is inherently contrary to public order, safety, or morals. (b) Independence from Locality: It is deemed a nuisance wherever it is maintained. (c) Immediate Threat: It poses a direct and immediate danger to health, safety, or property. (d) Objective Determination: Its status is determined by law and not by the degree or extent of annoyance or damage to a particular plaintiff.
V. Judicial and Doctrinal Authority
The Supreme Court has consistently upheld this distinction. In Social Justice Society v. Atienza (G.R. No. 156052, March 7, 2008), the Court cited the definition from Article 695. In Tatel v. Municipality of Virac (G.R. No. 40243, November 11, 1991), the Court emphasized that a nuisance per se is “intrinsically harmful” and may be abated without judicial proceedings. Doctrinally, it is an act or condition that is “always, in any location, a nuisance, and which may therefore be abated or summarily destroyed by any person without liability” (Paras, Civil Code of the Philippines Annotated).
VI. Burden of Proof
For a nuisance per se, the burden of proof is significantly lower. The plaintiff need only establish the inherent nature of the act or structure as illegal or intrinsically harmful. There is no need to present evidence of actual damage or to weigh the utility of the conduct against the gravity of the harm, which is required for a nuisance per accidens. Proof of its existencesuch as showing it violates a specific statute, ordinance, or is an obvious public dangeris typically sufficient.
VII. Defenses Against a Claim of Nuisance Per Se
Defenses are limited due to the inherent unlawfulness of the condition. Potential arguments may include: (a) Lack of Jurisdiction: Arguing the abatement was done by a person or entity without authority. (b) Improper Classification: Contending that the nuisance is, in fact, a nuisance per accidens, requiring a full judicial hearing. (c) Compliance with a Legal Permit: However, this is generally unavailing if the permit was issued erroneously or the activity remains intrinsically dangerous or illegal. A permit cannot legalize an act that is a nuisance per se.
VIII. Abatement Procedures: The Right of Summary Abatement
This is the most critical legal consequence. Under Article 699, in conjunction with Article 695, a nuisance per se may be abated summarily or extra-judicially by the proper administrative or executive authorities, or even by private individuals in cases of imminent and urgent necessity. This means it can be removed or destroyed without the need for a prior court order. However, this power must be exercised with caution. For public officials, summary abatement must be done under authority of a valid ordinance and with due process in the form of notice and hearing, when the situation is not an emergency (Municipality of San Juan, Metro Manila v. Court of Appeals, G.R. No. 121920, March 20, 2003). For private individuals, the right is restricted to instances of immediate self-protection where delay would cause irreparable injury.
IX. Practical Remedies

For the Affected Party (Private Individual/Entity): (a) Documentation: Thoroughly document the nuisance with photos, videos, and notes establishing its inherent illegality or danger. (b) Demand Letter: Send a formal demand to the creator of the nuisance to cease and abate, citing specific ordinances or laws violated. (c) Report to Authorities: Lodge a formal complaint with the local government unit (LGU), specifically the Office of the Mayor, City/Municipal Engineer, or the Barangay, providing all evidence. Request immediate abatement under their police power. (d) Judicial Action (If Summary Abatement Fails): File an action for abatement and/or damages under Articles 699 and 704 of the Civil Code. For a nuisance per se, seek a writ of preliminary mandatory injunction for immediate cessation pending litigation. (e) Self-Help (Extreme Caution): Only in cases of urgent necessity where there is an immediate threat to life or property and no time to secure official help. This carries the risk of a counter-action for damages if the court later finds the nuisance was not per se.

For the Local Government Unit (LGU): (a) Ordinance Basis: Ensure there is a valid ordinance declaring specific acts or structures as nuisances per se and outlining the abatement procedure. (b) Due Process: Even for a nuisance per se, if time permits, provide notice and a brief hearing to the owner/occupant before abatement to avoid claims of arbitrariness. (c) Emergency Abatement: In clear cases of imminent danger (e.g., collapsing wall, illegal fireworks storage), abate first and contest later, documenting the emergency. (d) Coordination with Police: Execute abatement with law enforcement presence to prevent breach of peace.

For the Alleged Creator of the Nuisance: (a) Challenge the Classification: Immediately argue that the condition is a nuisance per accidens, requiring a full judicial hearing on its merits, and seek a Temporary Restraining Order (TRO) against any summary abatement. (b) Question Authority and Procedure: Verify if the abating official has authority and if the required procedural steps (notice, hearing) were followed. (c) Action for Damages: If abatement is done summarily without legal basis or proper procedure, file an action for damages under Article 706 of the Civil Code for vindictive or exemplary damages.