186 PerezvMadrona Cheng

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  Perez v. Madrona668 SCRA 696March 21, 2012“No person shall be deprved o! l!e, lber # or proper # $ ho% d%e process o! la$, norshall an# person be dened he e&%al pro ec on o! he la$s'(AC)S* Respondent-spouses (or %n o Madrona and +olanda . Pan e  are the registered owners of a residential property located in Greenheights Subdivision, Phase 2, Marikina City which is covered by C !o #$%&$' of the Registry of (eeds of Marikina City )n #%*%, the respondents built their house onthe aforesaid property which they had enclosed with a concrete fence and steel gate )n May 2', #%%%, the respondents received the following letter fro+ petitioner -ae S. Perez, Chief of the Marikina (e+olition )ffice, stating that the fence they built encroached on the sidewalk  which was a violation of P( #%$ of the !ational uilding Code, .Progra+a sa /alinisan at (isiplina saangketa0 and R1 %# on 3llegally occupied4constructed i+prove+ents within the road right-of-way herespondent-spouses are given  days to re+ove the aforesaid structure  1s a response, Madrona sent a letter to the petitioner stating that the May 2', #%%% letter 5#6contained an accusation libelous in nature as it is conde+ning hi+ and his property without due process7526 has no basis and authority since there is no court order authori8ing hi+ to de+olish their structure75&6 cited legal bases which do not e9pressly give petitioner authority to de+olish7 and 5:6 contained a falseaccusation since their fence did not in fact e9tend to the sidewalk )n ;une %, #%%%, the respondents received another letter re<uesting the+ to provide a relocationsurvey of the property which the respondents did not reply to believing that the petitioner was fishing forevidence because he was the one accusing of such )n =ebruary 2*, 2#, petitioner sent another letter with the sa+e contents as the May 2',#%%% letter but this ti+e giving the respondents ten days fro+ receipt thereof to re+ove the structureallegedly protruding to the sidewalk his pro+pted the respondents to file a co+plaint for in>unction before the Marikina City RCon March #2, 2# and likewise sought the issuance of a te+porary restraining order 5R)6 and a writ of preli+inary in>unction to en>oin petitioner and all persons acting under hi+ fro+ doing any act of de+olition on their property and that after trial, the in>unction be +ade per+anent )n March #$, 2#, the RC issued a R) against petitioner )n ;uly 2, 2:, the RC rendereda (ecision in favor of respondents he RC decision per+anently en>oined the defendant Pere8 fro+perfor+ing any act which would tend to destroy or de+olish the peri+eter fence and steel gate of therespondents? property he RC held that respondents, being lawful owners of the sub>ect property, areentitled to the peaceful and open possession of every inch of their property and petitioner?s threat tode+olish the concrete fence around their property is tanta+ount to a violation of their rights as property owners who are entitled to protection under the Constitution and laws )he R)C also r%led ha here s no sho$n/ ha responden s !ence s an%sance    per se   and presents an i++ediate danger to the co++unity?s welfare, nor is there basis forpetitioner?s clai+ that the fence has encroached on the sidewalk as to >ustify its su++ary de+olition C1 affir+ed the RC?s decision SS3S*  #6 @4! the re<uisites for the issuance of a writ of in>unction are presentA26 @4! respondents? structure is a nuisance  per se  which presents an i++ediate danger to theco++unity?s welfare and can be re+oved without need of >udicial intervention since the clearing of thesidewalks is an infrastructure pro>ect of the Marikina City Govern+ent and canno be res raned b#  he co%r s as provded n Presden al 4ecree No. 18185 1  374* # Bes =or an in>unction to be issued, $o re&%s es %s conc%r* !rs , here %s be a r/h o be pro ec ed and second, he ac s a/ans $hch he n%nc on s o be drec ed are vola ve o! he sad r/h . he respondents? rights over their concrete fence and steel gate whichcannot be re+oved without due process7 and the act of using a su++ary abate+ent for the de+olition of the concrete fence would violate the said right he SC said that if the petitioner had indeed found therespondent?s fence to have encroached on the sidewalk, his re+edy is !) to de+olish the sa+esu++arily, but should go to court and prove the respondents? violations in the construction of theconcrete fence 3t is )!B when the ob>ect to be re+oved is a nuisance  per se  that the court allows it to besu++arily abated as seen in the case of  Lucena Grand Central Terminal, Inc. v. JAC Liner, Inc. 2 !o he SC ruled in  Lucena Grand Central Terminal, Inc. v. JAC Liner, Inc.  that a% horzn/ heaba een o! n%sance $ ho% %dcal proceedn/s  only applies to a nuisance per se, or one which affects the i++ediate safety of persons and property and +ay be su++arly abated under theundefined law of necessity 5Monteverde v Generoso, '2 Phil #2& D#%*2E6 3n  Pampanga Bus Co., Inc. v. Municipality of Tarlac  where the appellant-+unicipality si+ilarly argued that the ter+inal involved therein is a nuisance that +ay be abated by the Municipal Council viaan ordinance, this Court heldF .Suffice it to say that in the abate+ent of nuisances the provisions of theCivil Code 51rticles $%:-6 +ust be observed and followed his appellant failed to do Respondents? fence is not a nuisance    per se y its nature, it is not in>urious to the health,co+fort, safety of the co++unity 3t was built pri+arily to secure the property of respondents andprevent intruders fro+ entering it 1s pointed out by the respondents, the sidewalk still e9ists 3f petitioner still believes that respondents? fence indeed encroaches on the sidewalk, it +ay be so proven ina hearing conducted for that purpose !ot being a nuisance  per se , but at +ost a nuisance    per accidens 5according to the SC6, its su++ary abate+ent without >udicial intervention is unwarranted 2
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