Perez vs.
Madrona and petitioners threat to demolish the
668 SCRA 696
March 21, 2012
FACTS:
Respondent-spouses Fortunito Madrona
and Yolanda B. Pante are registered
owners of a residential property located
in Greenheights Subdivision
in Marikina City where they built their house
and had it enclosed with a steel gate and
concrete fence.
They received a letter from petitioner Jaime
S. Perez, Chief of the Marikina Demolition
Office stating that the structure they built
encroached on the sidewalk and is in
violation of PD 1096 of the National Building
Code and RA 917 on Illegally occupied/
constructed improvements within the
road right-of-way and ordered the
respondents to have the said structure
removed within 7 days.
Respondent sent a letter to the petitioner
stating that the letter sent by the latter
contained a libelous accusation as it is
condemning him and his property without
due process and has no basis and authority
because there is no court order authorizing
him to demolish the structure
the cited legal bases in the letter that do not
expressly give petitioner the authority to
demolish and the letter contained a false
accusation since their fence did not in fact
extend to the sidewalk
After more than a year, the petitioner sent
the respondents the same letter giving them
10 days from the receipt thereof to remove
the said structure.
Respondents filed a complaint for injunction
before the Marikina City RTC and sought
the issuance of a TRO and a writ of
preliminary injunction to enjoin petitioner
and all persons acting under him from doing
any act of demolition on their property and
that after trial, the injunction be made
permanent.
The RTC decision permanently enjoined
defendant Perez from destroying or
demolishing the respondents property.
The RTC held that respondents, being
lawful owners of the subject property, are
entitled to the peaceful and open
possession of every inch of their property
concrete fence around their property is
tantamount to a violation of their rights as
property owners who are entitled to
protection under the Constitution and laws.
The RTC also ruled that there is no showing
that respondents fence is a nuisance per
se and presents an immediate danger to
the communitys welfare, nor is there basis
for petitioners claim that the fence has
encroached on the sidewalk as to justify its
summary demolition. CA affirmed.
ISSUE:
W/N respondents structure is a nuisance per
se that presents immediate danger to the
communitys welfare and can be removed
without need of judicial intervention since the
clearing of the sidewalks is an infrastructure
project of the Marikina City Government and
cannot be restrained by the courts as provided
in PD No. 1818
HELD:
NO.
If petitioner found respondents fence to
have encroached on the sidewalk, the
remedy is not to demolish the same after
respondents failed to heed his request to
remove it but instead, he should go to court
and prove respondents supposed violations
in the construction of the concrete fence.
Unless a thing is a nuisance per se one
which affects the immediate safety of
persons and property and may be summarily
abated under the undefined law of necessity,
it may not be abated summarily without
judicial intervention.
Respondents fence is not a nuisance per se
because by its nature, it is not injurious to
the health or comfort of the community but
was built primarily to secure the property of
respondents and prevent intruders from
entering it.
If petitioner believes that respondents fence
indeed encroaches on the sidewalk, it may
be so proven in a hearing conducted for that
purpose. Not being a nuisance per se, but
at most a nuisance per accidens, its
summary abatement without judicial
intervention is unwarranted.