Dear PAO,

In order to earn extra income, I built a barber shop which occupied a portion of the sidewalk. When my business boomed, a barangay official approached me and said that my shop was a nuisance and it should be transferred inside the premises of my land. He mentioned that residents are already complaining because my shop hinders the easy access to the sidewalk. Is my shop considered a nuisance? What are the parameters to consider one thing as a nuisance?

Kris

Dear Kris,

Pursuant to Article 694 of the New Civil Code of the Philippines, 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.

Correlative thereto, Article 695 of same law states that: “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.”

The parameters to consider whether one is a nuisance per se or accidens were enumerated in Spouses Calimlim and Isla Patnubay Calimlim vs. Goño and Goño, GR 272053, Jan. 14, 2025, where the Supreme Court, speaking through Associate Justice Amy Lazaro-Javier, stated that:

“What sets a nuisance per se apart from one per accidens is its characteristic of being a direct menace to public health or safety. Moreover, it is the law of necessity that justifies the summary abatement of a nuisance per se. Borrowing from American jurisprudence, The Iloilo Ice and Cold Storage Company cited a few examples: slaughterhouses; carcasses of dead animals lying within the city; goods, boxes, and the like piled up or remaining for a certain length of time on the sidewalks; or other things injurious to health, or causing obstruction or danger to the public in the use of the streets and sidewalks. Our own jurisprudence, on the other hand, guides us with examples of nuisances per se: houses constructed on public streets without governmental authority, waterways or esteros that obstruct the free use by the public of the said streets, or a barbershop occupying a portion of the sidewalk of the poblacion’s main thoroughfare. Therefore, to constitute a nuisance per se, the obstruction must hinder the public use of streets, highways, or sidewalks, or the interference with the safety or property of a person must be immediate. In other words, the perceived danger that the act, omission, establishment, business, or condition of property poses must be of the type that presents an emergency. To the mind of the Court, no less than these types of situations call for the law of necessity. No other standard can be countenanced, for the measure that a nuisance per se calls for is summary abatement — an extreme, if not desperate, measure that calls for exacting circumstances, lest the constitutional guarantee of due process be robbed of its power.” (Emphasis supplied, citations omitted)

Applying the above-quoted decision to your situation, the construction of a barber shop is not a nuisance per se, however, a barber shop erected on a sidewalk hinders the free passage or public use of the sidewalk. The obstruction created by the barber shop clearly poses interference with the safety of any person using the sidewalk; hence, the same is classified as nuisance per se.

We hope that we were able to answer your queries. This advice was based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

We appreciate your trust and support.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]