Nuisance (Rich)

8/4/2019 Nuisance (Rich)

1/11

NUISANCE: A nuisance is any act, omission, establishment, business, condition of property, oranything 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.

Is nuisance the same as negligence?

Nuisance differs from negligence. The basis of liability arising from nuisance is not negligence.

Negligence is the want of proper care, if you fail to exercise the diligence of a good father of a

family. It corresponds with the time and the circumstances. In short, if you are sued for abatement

of nuisance, exercise of ordinary diligence is not a defense. A person who creates a nuisance is

responsible for the resulting injury, regardless of the degree of care or skill exercised to avoid such

injury. That even if you exercise due diligence that is not a mitigating circumstance so to speak.

If you are an aggrieved party in a nuisance suit, what remedy are you entitled to? You are entitled to

abate the nuisance or to stop the nuisance and for consequential damages.

FYI: 75k ra ang value sa human life if theres no question..

CLASSIFICATION OF NUISANCE:

PUBLIC NUISANCE:

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.

Note: Only the city mayor is authorized to avail a public nuisance except if the nuisance is esp. injurious

to you.

Q: Will the action be dismissed simply bec. you file it yourself and not the mayor?

Ans: It will be dismissed if you cannot prove that the nuisance is esp. injurious to yourself.

PRIVATE NUISANCE:

A private nuisance is one that is not included in the foregoing definition.Nuisance may also be:

1. Per se- nuisance at all times regardless of the circumstancesEg. Houses of prostitution, gambling houses, houses constructed on public streets, river

beds

2. Per accidens-nuisance only under or because of certain circumstances or conditions. Thisnecessitates a previous determination by a tribunal.

Eg. Rubber factory in a residential subdivision, raising a breeding of pigs in a residential

area

Q: Why do we have to distinguish between nuisance as being per se or per accidens.


2/11

Ans: Because of the remedies available to avail. If it is nuisance per se it can be summarily

abated, no need for a court order.Mere executive order by the mayor will be sufficient and the

mayor can validly issue such an executive order on the strength of Sec.16 of LGC on the general

welfare Clause. However,if it is nuisance per accidens, there is a need for a court proceeding, to

determine whether it is a nuisance or not. There is no summary abatement available if it is a

nuisance per accidens.

Cases which are to be considered as nuisance per accidens and cannot be summarily abated by the

mayors executive order:Estate of gregoria case: copra business

Torayno case: gasoline business

Lucena grand terminal case: public transpo business

REMEDIES IN NUISANCE:

1. prosecution under RPC or local ordinance2. civil action (eg.injunction)3. abatement without judicial proceedings

Basis for the exercise of abatement:a. police powerb. xxx

Doctrine of Attractive Nuisance: Dangerous instrumentality or appliance which is likely to attract children at play. 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.

If you maintain an attractive nuisance you would be liable and the child should not beconsidered as a trespasser.

However, if what you are maintaining is only a duplication of nature as in the case ofHidalgo, the owner shall not be held liable. Unless, if there are some artificial

modifications (i.e. Jollibee mascot, tree house)

Hidalgo Enterprises Inc. vs. Guillermo Balandan et.al. G.R. No. L-3422 June 13, 1952

Nature has created streams, lakes and pools which attract children. Lurking in their waters is always

the danger of drowning. Against this danger children are early instructed so that they are

sufficiently presumed to know the danger; and if the owner of private property creates an

artificial pool on his own property, merely duplicating the work of nature without adding any

new danger, . . . (he) is not liable because of having created an `attractive nuisance.
http://d/OFFICE%20FILES/USC%20LAW%20FILES/PROPERTY/Civil%20Law%20Review/Cases/Nuisance/Hidalgo%20Enterprises%20v.%20Balandan.dochttp://d/OFFICE%20FILES/USC%20LAW%20FILES/PROPERTY/Civil%20Law%20Review/Cases/Nuisance/Hidalgo%20Enterprises%20v.%20Balandan.dochttp://d/OFFICE%20FILES/USC%20LAW%20FILES/PROPERTY/Civil%20Law%20Review/Cases/Nuisance/Hidalgo%20Enterprises%20v.%20Balandan.doc


3/11

MODES OF ACQUIRING OWNERSHIP:

Art. 712. Ownership is acquired by occupation and by intellectual creation.Ownership and other real rights over property are acquired and transmitted by law, by

donation, by testate and intestate succession, and in consequence of certain contracts, by

tradition.

They may also be acquired by means of prescription.

MODES OF ACQUIRING OWNERSHIP:

1.occupation

2.intellectual creation.-eg.patents,trademarks,copyright

3.law,-eg.fruits naturally falling from the tree of your neighbor and falls in your property; hidden

treasure; ownership of alluvial deposits form gradually and imperceptively by the current of the

river

4donation-

5.succession(testate and intestate)

6.in consequence of certain contracts, by tradition.-eg. In sale, the execution of public instrument

transfers ownershipif coupled with delivery

7.prescription

If the basis for claiming ownership is prescription you have to provejust title-you come into ownership

of the thing thru any of the modes of acquiring ownership except that the source of your title is

not the owner.

MODE AND TITLE:Mode is the specific cause which produces dominion and other real rights as a result of the co-

existence of special status of things, capacity and intention of persons and fulfillment of the requisites of

law

OCCUPATION: all things appropriable by nature without an owner (res nullius)

Eg. Animals object of hunting, hidden treasure and abandoned movables are acquired by

occupation

Ownership of a piece of land cant be acquired by occupation.

LAW- eg. Hidden treasure, changes in the course of the river, fruits of trees falling naturally in the

property of another

PRESCRIPTION-


4/11

DONATION- is an act ofliberality (as shown by the phrase love & affection), whereby a person disposes

of gratuitously of a thing or right in favor of another who accepts it.

For donation to be valid there must be acceptance by the donee and the acceptance must be made

known during the lifetime of the donor.

FYI: Donation made to a paramour is a void donation.

Donation made to the wife is also void, except moderate gifts on occasion of family rejoicing.

RULES:

-only gratuitous and remuneratory donations are governed by the provision of Title III.

-Donation with an onerous cause is governed by the rule on contracts.

-Donation mortis causa governed by the formalities required in execution of notarial will. (Art.805 CC)

Classification of Donations:

Simple/Gratuitous-cause is pure liberality; a unilateral act of the donor (art.727)

If it is a pure and simple/gratuitous donation with an impossible condition or conditions contrary to law,

morals, good customs, public order or public policy, the effect would be that it will be simply

disregarded and will not invalidate the donation as stated in Art. 727 CC .

Remuneratory( first kind)- to reward past services e.g. donation who saved life of his son)

The donation is made in consideration of the rendition of past service which however does notconstitute a demandable debt.

Remuneratory (second kind)- to reward future services

Onerous- there are burdens, charges, or future service. This is governed by the rules of contracts.

(Art.1193)

Akin to a contract which has a reciprocal obligation.ART.1193 Impossible conditions cite this!

So, if it is an onerous donation and there is an impossible condition or conditions contrary to law, morals

good customs, public order or public policy that would invalidate the donation. Because the Rules

on Contracts say that impossible condition or conditions contrary to law, morals good customs,

public order or public policy shall annul the obligation which depends upon them.

Modal-theburden is less than the thing donated. To the extent of the burden governed by therules onObligation and Contract and the excess of that is covered by Title III

Donations may also be:

1. Mortis causa-takes effect/operative after death of the donor; must follow the formalities in theexecution of will and testament


5/11

Attestation clause 3 witnesses

2. Inter Vivos- takes effect during the lifetime of the donor; act is immediately operative and final;the donor may stipulate that he the donor shall take possession over the property while he is still

alive, which means that the donor becomes a usufruct and the donee becomes the naked owner of

the property donated. Not sure pa..

FYI: Donation may also be made to an unborn child and the acceptance must be made by the parent.

Magat vs CA: Issue: what is this donation?

SC: If this is the issue we have to examine the terms of the donation?

Austria-Magat vs. Hon. Court of Appeals G.R. No. 106755 February 1, 2002 [ INTER-VIVOS DONATION]

Deed of Donation provides: Ibinibigay ko at ipinagkakaloob ng ganap at hindi mababawi sa naulit na

apat na anak ko at sa kanilang mga tagapagmana, ang aking lupang residential o tirahan sampu

ng aking bahay nakatirik doon xxx. (emphasis supplied)

Donation Propter Nuptias- are donations made in consideration of marriage. Governed primarily by the

Family Code and in a suppletory manner Title III.

Essential Elements of Donation:

1. Essential reduction of the patrimony of the donor. So, if the donor will donate there is reductionin his assets.

2. An increase in the patrimony of the doneee.3. Intent to do an act of liberality.

Is donation a contract? YES.

Contract is the meeting of minds between two persons whereby one binds himself with respect to the

other to give something or to render some service.

Yes, like any contract donation also requires the concurrence of the reciprocal consent of the parties. It is

not perfected until it is accepted by the donee and the acceptance must be made known to the donor

during his lifetime. And the manner of acceptance must be stated in an authentic form and noted in both

instruments. (i.e. Deed of Donation and in that authentic form which is made separately). It is to be stated

or reflected in both instruments that the donor knows about the acceptance.

However, in one case the SC said that even if the acceptance is not noted in the instruments but based

from the facts it is very clear that the donor knows about the acceptance, there can still be a valid

donation. Based on the principle that fiction gives rise to reality.
http://d/OFFICE%20FILES/USC%20LAW%20FILES/PROPERTY/Civil%20Law%20Review/Cases/Donation/austria-magat%20vs.%20court%20of%20appeals.dochttp://d/OFFICE%20FILES/USC%20LAW%20FILES/PROPERTY/Civil%20Law%20Review/Cases/Donation/austria-magat%20vs.%20court%20of%20appeals.dochttp://d/OFFICE%20FILES/USC%20LAW%20FILES/PROPERTY/Civil%20Law%20Review/Cases/Donation/austria-magat%20vs.%20court%20of%20appeals.dochttp://d/OFFICE%20FILES/USC%20LAW%20FILES/PROPERTY/Civil%20Law%20Review/Cases/Donation/austria-magat%20vs.%20court%20of%20appeals.doc


6/11

If he possess at the meantime he is the usufructuary. Just because there is no transmission of possession

immediately after the donation that does not necessarily negate the fact that the donation is still an inter

vivos donation.

In fact there is a provision in Title III that even if the donation is subject to a suspensive condition, still

the donation is an inter vivos donation.

If it is a donation mortis causa, we have to follow the formalities required in the execution of a notarial

will. That it must have an attestation clause and the very least 3 witnesses.

CHARACTERISTICS OF A MORTIS CAUSA DONATION:

Bonsato vs. Court of Appeals [ G.R. No. L-6600 July 30, 1954 ], the characteristics ofdonation mortis causa are as follows:

(1) It conveys no title or ownership to the transferee before the death of thetransferor; or, what amounts to the same thing, that the transferor should retain the

ownership (full or naked) and control of the property while alive;

For instance I donate to you. You are entitled to possess but there is a stipulationthere that I reserve my power to sell the parcel of land.

Remember that the donor has the reserved power to sell. Donation mortis causa is revocable by nature. In donation intervivos you completely part with rights of ownership.

(2) That before his death, the transfer should be revocable by the transferor at will,ad nutum; but revocability may be provided for indirectly by means of a reserved power in

the donor to dispose of the properties conveyed;

As long as there is that power to revoke then, it is mortis causa. (3) That the transfer should be void if the transferor should survive the transferee.

Eg. I donate to you a parcel of property but there is a stipulation that if thetransferee will predecease the transferor then the property will revert back to

the transferor.

If it was a donation intervivos what will happen is that if the transferee willpredeceased the transferor, the one who will own the property after the deathof the donee will be the heirs of the donee and will not be reverted back to the

transferor.

If it is a donation mortis causa and the document is in a public instrument but there is noattestation clause then the donation is invalid because it failed to comply with the formalities of a

notarial will.

Situation: It is a donation intervivos. There is a stipulation that if the donee dies ahead of thedonor the property shall go back to the donor. This donation is embodied in a document which isnotarized by a notary public but without an attestation clause.

Q: Is this a donation intervivos ?

Q: Is the donation valid?A: It is a mortis causa donation on the strength of the case of Bonsanto vs CA.

A: Hence, it must follow the same formalities required in the execution of a will and testament.

So, there must be an attestation clause and there must be 3 witnesses who must positively and

affirmatively state in the document that the witnesses see the donor signing and that the witnessessee each other signing.


7/11

Art. Though the property shall not be delivered till after the donors death. This shall be

considered as donation inter vivos. The donor continues to be in possession but that does not

necessarily negate that the donation is intervivos. Kay and possession man ang gi reserved di

man ang ownership. (look for this particular article)

See the next article.

I donate to you a parcel of land if youll pass the 2013 bar exam.

Cabatingan case: SC said that this is a mortis causa donation.

Note the distinguishing characteristic. If it is mortis causa there is always an attestation clause.

And even if it is intervivos it must be in a public document. There is no donation of a real

property in a private handwritten instrument.

Public documentis that duly notarized; does not mean to be registered in the RD.

It is not required that the donation must be registered in the RD for validity.

What is required is that the document embodying the donation of a parcel of land must bein a public document, which simply means that it is notarized by a notary public.

Attestation is required in the last will and testament and in donation mortis causa. But attestation

is not required if it is an inter vivos donation involving parcel of land. (art.805CC)

DONATION OF A MOVABLE:

Art. 748. The donation of a movable may be made orally or in writing.

An oral donation requires the simultaneous delivery of the thing or of the document

representing the right donated.

If the value of the personal property donated exceeds five thousand pesos, the donation and the

acceptance shall be made in writing, otherwise, the donation shall be void.

If movable and less than 5K, not required to be in writing but requires simultaneous delivery. If movable and at least 5K, must be in writing but not required to be in a public document.

DONATION OF REAL ESTATE:

Art. 749. In order that the donation of an immovable may be valid, it must be made in a public

document, specifying therein the property donated and the value of the charges which the

donee must satisfy.

The acceptance may be made in the same deed of donation or in a separate public document, but it

shall not take effect unless it is done during the lifetime of the donor.

If the acceptance is made in a separate instrument, the donor shall be notified thereof in an

authentic form, and this step shall be noted in both instruments.

Parcel of land must be in writing and in a public document. The requirement that it must be in a public document applies only when it is immovable by

nature.


8/11

Donation once perfected the donation is final except if there are legal grounds it cannot berevoked.

Q: Is an onerous donation valid if it is embodied in a private document?

A: Yes, because it is governed by the rules of contracts. To which contracts are perfected by mere

consent.

However, if it is a simple donation of a parcel of land and made in a private document then it is invalid.

2 instances where you can illustrate the rule:

1)the effect of the existence of impossible conditions

2)the effect if it is not executed in a public document

ELEMENTS OF DONATION:

1. CONSENT-following the theory of cognition;Donation is perfected from the moment the donor knows of the acceptance by

the donee. The donee must accept the donation personally or through an

authorized person with SPA.

The acceptance must be made during the lifetime and before the incapacity ofthe donor and the donee. Otherwise, the donation shall be deemed invalid.

Q: Who may give or receive the donation?A: Persons who may give or receive a donation:

1. All persons who may contract and dispose. Donors capacity is determinedas of the time of making, not at the time of signing. Donor must be capacitated

as to when he knew the acceptance by the donee.

Making- refers to time of the execution of the formalities and at thetime of the acceptance of the donation.

2. All those not disqualified by law may accept donations. Minors and others

who cannot enter into contract may become donees ,but acceptance shall be

done by their parents or legal representatives.

Eg. minors and even unborn child (have acquired personality) canbecome a donee.

Void Donations:

1. Those between persons guilty of adultery and concubinage at the timeof the donation. (prior conviction not required but only proof of

preponderance of evidence for concubinage or circumstantial evidence

for adultery)


9/11

2. Between persons found guilty of the same criminal offense.( priorconviction required)

3. Those made to a public officer or his wife, descendants and ascendants,by reason of his office. (RA 6713;3019)

2. OBJECT-ordinary donation may comprehend all the present property of the donor, or partthereof, provided he reserves in full ownership or in usufruct, sufficient means for the support

of himself and/or relatives.

Only present property (not future property) can be donated to which you havefree disposal thereof. Except donation propter nuptias which comprehends

future property.

You cant donate everything. There must be sufficient reservation for oneself&/or family.

But without reservation however the donation is not necessarily void. Thedonation will just be reduced by the petition of the person affected by it.

3. CAUSE- donation is an act of liberality, although it may be made on account of donees marriagefor the services but not constituting a demandable debt or of a burden which is less than the

value of the thing given.

Liguez vs Lopez Feb. 13, 1958

Formalities of Donation (see Art. 748 & 749)

a. Orallyb. In writing

Effect of Donation:

Fruits of the property at the time of acceptance when the donation pertains to the donee and his

donor provides otherwiseWhen the donation is made to several persons jointly understood to be in equal share with no right of

accretion among them, except if the donation is made by the husband and wife jointly theres simply

right of accretion.

Eg. Donation is made to A & B. If A dies does that mean that the donation shall go to B?

A: No, except if A & B are husband and wife.

Donees subrogated to all the rights and actions which will pertain to the donor.

The donor is not obliged to warrant the things donated.

If the donation is onerous, you have a valid ground to file an action for damges. Hoever, if the

donation is simple you have no ground.

The property can be donated to one person with the usufruct to another provided all the donees are

living at the time of the donation


10/11

a) When donation imposes upon the donee the obligation to pay debts of donor, the donee is onlyliable to pay debts previously contracted (unless there is a declaration to the contrary).

b) Donee not responsible for debts exceeding the value of the property donated.If there is no stipulation to the contrary regarding payment of debts the donee shall be

responsible only when the donation is made in fraud of creditors.

As a donee you can be held liable if it can be proven that there is fraudulent transfer

Presumption of fraudulent transfer: if at the time the donation was made the donor does not

reserve sufficient property to pay his debts.

Rule: Donation is final and could not be revoked.

Grounds to revoke:

A. APPEARANCE OF CHILDREN:1. If donor after donation should have legitimate or legitimated or illegitimate children even

though posthumous.

2. If child of donor believed to be dead, should turn out to be living.3. If donor should subsequently adapt a minor child.

B. BREACH OF CONDITION

EXTENT OF REVOCATION/REDUCTION:

Donation shall be revoked or reduced insofar as it exceeds the portion that can be freely disposed of by

will taking into account the whole net estate.

INOFFICIOUS Donation- the amount of the donated property exceeds the free portion and impairs the

legitime

LEGITIME- is the portion of the estate of the donor which is reserved to the compulsory heirs

Compulsory heirs includes the spouse, children, parents

4 years from the birth of the 1st

chld

4 year prescriptive period is reckoned from the date of birth of the 1st

child ( art.764)

5 M Reserved 5M Free Portion

(This is the only

portion that can

be freely

donated.)


11/11

Documents

Nuisance (Rich)