**FILE NUMBER:** **PROCEEDING:** PRECAUTIONARY MEASURE **PLAINTIFF:** ROBERTO YGLESIAS MORA **DEFENDANT:** COMPAÑIA NACIONAL DE FUERZA Y LUZ (CNFL) N° 2025005320 CONTENTIOUS-ADMINISTRATIVE AND CIVIL TREASURY COURT, SECOND JUDICIAL CIRCUIT, SAN JOSÉ, GOICOECHEA, at ten hours fifty-seven minutes on the second of June, two thousand twenty-five.- Request for a precautionary measure, filed by ROBERTO IGLESIAS MORA, acting in defense of the diffuse interests of the ASOCIACIÓN DE PROPIETARIOS Y FAMILIARES DE HACIENDA MIRAFLORES; against COMPAÑÍA NACIONAL DE FUERZA Y LUZ and JOSÉ LUIS MADRIGAL VILLALOBOS.
**WHEREAS** I) On October 11, 2024, Mr. ROBERTO IGLESIAS MORA, acting in defense of the diffuse interests of the ASOCIACIÓN DE PROPIETARIOS Y FAMILIARES DE HACIENDA MIRAFLORES, filed a request for a Precautionary Measure Ante Causam, petitioning the following: " 1.- That the Compañía Nacional de Fuerza y Luz S.A. be warned to refrain from installing meters and connecting electrical service to the property and houses of the cautioned party José Luis Madrigal Villalobos, on parcel 23 of the Hacienda Miraflores residential development in Dulce Nombre de Jesús, canton of Vásquez de Coronado, referenced ut supra, property registered under folio 661928-000 of San José, while the principal proceeding is processed. 2.- That José Luis Madrigal Villalobos be warned to refrain from carrying out any new works on those lands. 3.- That the foregoing limitations be ordered annotated in the registration entry of property folio 661928-000 of San José, and an order be sent to the Real Property Registry." (image 02 and following of the precautionary file).
- II)By order issued at 18:03 hours on October 11, 2025, the request for a provisionalísima precautionary measure, prima facie, is rejected and a legal hearing is granted to COMPAÑÍA NACIONAL DE FUERZA Y LUZ and JOSÉ LUIS MADRIGAL VILLALOBOS.
- III)In briefs dated November 7 and 8, 2025, JOSÉ LUIS MADRIGAL VILLALOBOS and COMPAÑÍA NACIONAL DE FUERZA Y LUZ, respectively, respond to the hearing granted and request that the petitioned precautionary measure be declared without merit. (images 87 to 124 of the precautionary file).
- IV)The prescriptions of law have been observed in the proceedings, and no defects or omissions that could cause defenselessness to the parties or future nullities are noted.
**WHEREAS** I) GENERALITIES FOR THE GRANTING OF A PRECAUTIONARY MEASURE. As has been developed by the Constitutional Chamber, precautionary justice responds to the need to guarantee the constitutional principle of prompt and complete justice, by preserving the real conditions indispensable for the issuance and execution of the judgment. (Resolution 7190-1994, of 15:24 hours on December 6). In this same sense, Article 19 of the Código Procesal Contencioso Administrativo establishes that the purpose of imposing a precautionary measure is to provisionally protect and guarantee the object of the proceeding and the effectiveness of the judgment. Doctrine has indicated that precautionary justice does not aim to declare a fact or a liability, nor to constitute a legal relationship, nor to execute a mandate and satisfy a right that is held without being disputed, nor to settle a litigation, but rather to prevent the damages that the litigation may cause or that may derive from an abnormal situation (Gallegos Fedriani, Pablo. Las medidas cautelares contra la Administración Pública. 2 ed. Buenos Aires, Argentina: Ábaco, 2006). Having clarified the foregoing, the judge, observing the provisions of Article 21 of the indicated procedural rule, must determine the appropriateness of a request for a precautionary measure, verifying to that effect that the claim of the cognizance proceeding is not reckless or, manifestly, lacking in seriousness, which constitutes a preliminary assessment of the merits to determine if, in the case at hand, what doctrine and jurisprudence have called appearance of good right or fumus boni iuris exists. The rule under analysis also establishes the appropriateness of the precautionary measure when the execution or permanence of the conduct subjected to proceeding produces serious damages or injuries, current or potential, a situation that has been defined in doctrine as periculum in mora or danger in delay, that is, that by virtue of the pathological delay of the judicial process, a current, real, and objective danger exists that serious damage will be caused to the moving party (Jinesta Lobo, Ernesto. Manual del Proceso Contencioso-Administrativo. 1 ed. San José, Costa Rica, Editorial Jurídica Continental, 2008). Along the same line of thought, Article 22 of the Código Procesal Contencioso Administrativo establishes the obligation of the judge to carry out, in light of the principle of proportionality, a weighing of the interests at stake, that is, between the circumstance of the individual, on one hand, and the public interest and the interests of third parties that may be affected by the adoption of the precautionary measure, on the other. Additionally, and from the same cited numeral 22, it is required that the precautionary measure be instrumental and provisional. Based on the foregoing normative framework of analysis and the elements required for the granting of a precautionary measure, we proceed to carry out the study of the specific case.
- II)ESSENTIAL REQUIREMENTS TO ADMIT THE PRECAUTIONARY MEASURE. In this regard, it has been said that for the fulfillment of precautionary protection, as a fundamental right derived from constitutional numeral 41, which is the right to obtain prompt and complete justice, the jurisdictional body must assess for its effective materialization, in addition to the fulfillment of the prerequisites known in doctrine as Appearance of Good Right (Fumus Boni Iuris), Danger in Delay (Periculum in Mora), as well as the weighing of the interests at stake, which will be detailed below, the verification of the presence or existence of what have been called, structural characteristics of the precautionary measure. The foregoing refers to instrumentality, provisionality, urgency, and the summaria cognitio or summary nature of the proceeding. Both the indicated prerequisites and the mentioned characteristics must be present for the granting of the measure that has been requested for the purpose of provisionally protecting and guaranteeing the object of the proceeding and the effectiveness of the judgment. With respect to the prerequisites necessary for granting the precautionary measure, we find the following: a) Appearance of Good Right: for the appropriateness of the precautionary measure, there must be "seriousness in the claim," that is, a probability of success such that the claim does not appear, at first glance, manifestly lacking in seriousness, or in its case, that it is reckless. For doctrine, it is nothing other than the probable subsequent estimation of the plaintiff's material right in the judgment, through the analysis characteristic of a summary proceeding that in no way can or should determine a pronouncement on the merits of the matter raised, but rather and instead, only an approximation to it with the elements present at the time of issuing the ruling that grants or denies the measure; b) Danger in Delay: consists of the objectively founded and reasonable fear that the substantial legal situation adduced may be seriously damaged or injured in a grave and irreparable manner, during the course of the time necessary to issue judgment in the principal proceeding. This prerequisite requires the presence of two elements: the grave damage or injury and the delay in the cognizance proceeding, without neglecting, of course, that within this prerequisite is found what doctrine has termed the "Bilaterality of Periculum in Mora" or as it is commonly known, the weighing of the interests at stake. The prerequisite alludes to the characteristic that the damages reproached must be susceptible to occurring—currently or potentially—if the required measure is not adopted. Damages that must be established as serious, in addition to being considered as derived from the adduced situation. The injuries alleged must at least be proven through the rational principle of evidence, so it is not enough to adduce the damage in the stated terms, but rather the circumstances must be accredited for it to be considered a damage and for the same to be serious. Regarding the delay in the cognizance proceeding: This prerequisite refers to the situation generated on the occasion of jurisdictional proceedings that require, for their development and subsequent conclusion, the performance of a series of acts through which not only due process is guaranteed, but also the issuance of a ruling that, if it cannot be carried out promptly, is at least just. Putting an end to a cognizance proceeding demands time, and it is precisely where precautionary protection acquires special relevance, in that while that decision in the case is pending, serious damages are being avoided, which, should they occur, would render the right claimed nugatory. Regarding the bilaterality of periculum in mora: Under this denomination, reference is made to the weighing of the interests at stake, linked to the public interest that may be susceptible to needing protection, against the interest of third parties and, of course, the interest of whoever resorts by means of a precautionary measure, the same having to be assessed comparatively, with the denial of the measure being imposed when the injury suffered or susceptible to being caused to the community or third parties is greater than that which the applicant for the measure could experience.- III) STRUCTURAL CHARACTERISTICS OF THE PRECAUTIONARY MEASURE: As had been indicated, in addition to the prerequisites already mentioned, it is necessary that the measure to be adopted structurally possess the following characteristics: instrumentality, which means they maintain a marked relationship of accessoriness with the final judgment, since ultimately, they serve as an instrument to maintain the validity of the object of the proceeding in the terms set forth; provisionality, which is nothing other than that what is agreed regarding the precautionary measure will remain in effect and conditioned upon what is resolved in the proceeding on the merits. It should be highlighted that it can also be ceased or modified at any time, given the variability of the conditions that originally gave rise to it, or even, adopt the one that was previously rejected, as established by numeral 29 of the Código Procesal Contencioso Administrativo, for which its efficacy is exhausted at the moment the judgment on the merits is issued, or what is the same, it has effects subject to the disposition adopted in the principal proceeding; urgency to avoid the danger in delay, as well as the summaria cognitio, that is, that this type of measure is adopted by virtue of a summary cognition carried out by the jurisdictional body without entering to prejudge the merits of the matter, which in no way could substitute the stages of the cognizance proceeding.- IV) ARGUMENTS OF THE PLAINTIFF PARTY: Regarding the appearance of good right, it indicates that it is accredited by the land use, which states that the parcel of the defendant Madrigal Villalobos can only contain a single-family dwelling, and additionally, must respect a 15-meter setback from the property boundaries. It indicates that the zone in question is cataloged as low population density land, due to its environmental conditions and ecological vulnerability. It points out that Hacienda Miraflores is bordered by two clean water streams and that these must be maintained in those conditions, since it is a water catchment area for the Valle Central. Regarding the danger in delay, it states that on parcel 23 four houses were built, each for a different family with vehicles, which represents a serious damage that threatens the environmental fragility of the zone in the face of a larger environmental footprint and general pollution. It declares that there is a threat to wildlife and an impact on landscaping, which is a right of constitutional rank, pursuant to the Código General del Ambiente. It considers that if the damages continue, there will be a decrease in the value of the properties, that water consumption will increase, to the detriment of the rest of the community. It alleges the right to a healthy and ecologically balanced environment held by the inhabitants of Hacienda Miraflores, which is affected by the illegal constructions carried out by the co-defendant herein.
- V)ARGUMENT OF THE DEFENDANT PARTIES: COMPAÑÍA NACIONAL DE FUERZA Y LUZ: It states that in relation to the facts of this proceeding, its actions have been in accordance with the legal system and that, in view of the procedure for new single-phase electric service N°113539048, it was detected that the Boleta de Sellado de Planos Eléctricos provided by Mr. Madrigal Villalobos contained information that does not correspond to the property of the project under construction; therefore, the electric service was not connected. Regarding the prerequisites for granting the precautionary measure, it indicates that the plaintiff fails to meet the procedural burden by not proving the "serious danger to the enjoyment and use of electric service by Mr. Madrigal Villalobos, in the understanding that the same has not been provided at present." It also states that the plaintiff has not demonstrated the appearance of good right nor the serious damage, and consequently, it is impossible to make a real weighing of the interests at stake, and adds that, "however, it is worth noting that the public interest derived from the execution of the concession granted to the Compañía Nacional de Fuerza y Luz, S.A., by mandate of law, namely the electric energy distribution service which contributes to the improvement of the quality of life and economic evolution of the country." JOSÉ LUIS MADRIGAL VILLALOBOS: Indicates that the appearance of good right does not exist in the present request for a precautionary measure, and points out that the majority of neighbors have built in Hacienda Miraflores without any permit, exceeding the number of persons per family, that there are "large luxury mansions," where many people live and all with vehicles, and that wildlife is already affected by these constructions, that in the hacienda there is sonic, light, and visual pollution, points out that the plaintiff's own parcel is part of this situation, and argues that contrary to what was indicated by the plaintiff, in Hacienda Miraflores only the cabins built by him are environmentally friendly. He goes on to point out that there is an interest of the plaintiff and some neighbors who follow him, in obstructing the right to live on his property. He states that the Compañía Nacional de Fuerza y Luz has its own standards and regulations for assigning a new service, and that the plaintiff herein cannot assume the attributions of a public entity to demand to whom service is granted and to whom it is not. He also argues that trying to interfere with his right to carry out works on his property violates the right to private property, guaranteed in Article 45 of the Constitución Política, and ends by indicating that his property cannot be annotated without a just title, much less can his full enjoyment of it be limited.
- VI)REGARDING THE TESTIMONIAL EVIDENCE OFFERED BY THE PARTIES: Both the plaintiff party and the defendant Madrigal Villalobos offer the testimony of various witnesses as evidence. Nevertheless, in both cases, the witnesses are offered to refer to the actions carried out, and not to accredit or discredit the impact or damages claimed by the plaintiff party deriving from the impugned conduct, at least, it is not expressly indicated in that sense. Note that in the case of the witnesses offered by the plaintiff party, it is limited to indicating that they will testify about the facts within their knowledge regarding this proceeding. The testimonial evidence could have been of some use regarding the prerequisite of danger in delay, when pertinent, for example, the offering of an official from SINAC or SETENA, who, based on their knowledge of the facts and the subject matter, accredits or detracts from the alleged damage; however, as stated, neither party expressly offers it for such purpose, for which reason, the testimonial evidence offered is rejected, making it thus unnecessary to convene the optional oral hearing provided for in numeral 24, 2) of the Código Procesal Contencioso Administrativo.
- VII)CRITERION OF THIS JUDGE: Regarding the appearance of good right: it must be said that from the analysis of the precautionary request, it is preliminarily observed that the theory of the case presented is not reasonably motivated and formulated, such that, without entering into a value judgment on the merits (which in any case is not characteristic of the precautionary process), it is deemed that the action exercised does not meet the minimum criteria that would allow the appreciation of the existence of a good right on the part of the plaintiff, for the reasons detailed below: In relation to the corresponding claim, that "the Compañía Nacional de Fuerza y Luz S.A. be warned to refrain from installing meters and connecting electrical service to the property and houses of the cautioned party José Luis Madrigal Villalobos, on parcel 23 of the Hacienda Miraflores residential development in Dulce Nombre de Jesús of the canton of Vásquez de Coronado, as referenced ut supra, property registered under folio 661928-000 of San José, while the principal proceeding is processed," the undersigned considers it to be, by all appearances, a reckless claim, and lacking the necessary seriousness to be granted in this avenue. To tell the Public Administration not to carry out its conducts, which are obligatory due to its administrative function, there being an express rule that so provides (Art 66 LGAP), is lacking in seriousness and reckless. The Compañía Nacional de Fuerza y Luz is obligated by rule of law to acknowledge and process the procedures that private parties bring to its attention; the foregoing per se does not imply their approval, but rather the verification of compliance or non-compliance with the requirements established in the corresponding regulations in order to issue an administrative act approving or denying what was requested. The scenario would be different in the case that the defendant Administration herein had approved the installation of a requested meter, where the plaintiff party questions the legality of that action adopted through administrative channels due to a lack of verification and/or verification of the legal requirements; however, that is not the case at hand, since according to what was indicated and demonstrated in the case file by the Compañía Nacional de Fuerza y Luz, in accordance with the Boleta de Sellado de Planos Eléctricos OC-1147481, the data that Mr. Madrigal Villalobos provided in his application did not correspond to the property of the project under construction; therefore, procedure N°113539048, for new single-phase electric service, was annulled on September 9, 2024 (image 182 of the electronic digital case file), without it being recorded in the case file that, to date, the electrical service connection on property 661928-000 of the San José registration district has been approved. In reference to the claim that José Luis Madrigal Villalobos be warned to refrain from carrying out new works on the land related to the object of this proceeding, the undersigned judge considers that similarly, the appearance of good right is not met, since what is requested cannot be complied with, reviewed, and/or executed by the defendant Administration; note that the petitioner channels his lawsuit against the Compañía Nacional de Fuerza y Luz, which does not have the power of regulation and oversight in construction matters, being on the contrary, a public company of the Instituto Costarricense de Electricidad, responsible for the distribution and commercialization of electrical energy. In that sense, it is held that there is an error on the part of the plaintiff, in not directing his precautionary claims against the corresponding administration. As for the possibility that the plaintiff party could allege that the precautionary claim is directed directly at Mr. Madrigal Villalobos refraining from carrying out construction works, ordered directly by this judicial authority, without the participation of the competent administration in the matter within the proceeding, it also lacks appearance of good right, as the party's claim is evidently reckless, given that, within its petitionary list, it does not attack or request the review and/or suspension of acts related to the constructions carried out on property 661928-000, of the San José registration district; the defendant Madrigal Villalobos is correct in pointing out that the adoption of the precautionary measure in the manner intended herein would violate his right to property. Let it be kept in mind that this judge is not indicating that it is impossible in this avenue to attempt the suspension of works on private property where their legality is questioned; it is only being indicated that the manner in which the precautionary proceeding was formulated by Mr. Iglesias Mora, acting in defense of the diffuse interests of the Asociación de Propietarios y Hacienda Miraflores, is lacking in seriousness and by all appearances reckless. Finally, regarding the request for annotation of the foregoing limitations in the registration entry of property folio 661928-000, of the San José registration district, it suffers the same fate as the previous claims, given that it was already indicated that both precautionary claims are lacking in appearance of good right; therefore, since this prerequisite has not been overcome, the appropriate course is to reject the precautionary measure in its entirety. Regarding the danger in delay: It consists of the objectively verifiable fear or danger that the delay in developing the principal proceeding may entail the loss, deterioration, or frustration of the substantial legal situation adduced, which would be linked to the uselessness of the judgment on the merits in such cases. Regarding this point, Article 21 of the CPCA indicates that: "The precautionary measure shall be appropriate when the execution or permanence of the conduct subjected to proceeding produces serious damages or injuries, current or potential, of the situation adduced(...)”. Therefore, whenever there is a danger of damage or injury, current or potential, to the substantial legal situations of the parties, precautionary protection must serve as a protection and guarantee mechanism, in order to fully preserve such legal situations; the foregoing, coupled with the fact that not in all cases does the party seek mere compensatory reparation, but rather primarily and fundamentally, the integrity of their claim and the legal situation that sustains it. However, it cannot be overlooked that the particular situation of the person is what must necessarily be demonstrated, with useful, pertinent, and compelling evidence, to accredit not only the urgency but also, and in addition, the damage, damage that must not only be present but must also reach magnitudes of seriousness, as a product of the questioned administrative determination. In the case at hand, it must be indicated that the moving party alleges as damage that the constructions carried out on parcel 23 of Hacienda Miraflores, which are illegal, are threatening the environmental fragility of the zone, since four houses were built, each for a different family with vehicles, which causes a larger environmental footprint and general pollution. It declares that there is a threat to wildlife and an impact on landscaping, which is a right of constitutional rank, under the Código General del Ambiente. The party indicates that if the damages continue, there will be a decrease in the value of the properties of the hacienda's neighbors, that water consumption will increase, to the detriment of the rest of the community, and that the aquifers of the zone are placed at risk; in general, it alleges a violation of a healthy and ecologically balanced environment. The undersigned considers that in the present case, the damage alleged is not proven by the party requesting the precautionary measure; making a review of the evidence provided to the case file, it is noted that the party presents as evidence a series of complaints filed in criminal court, before the Municipalidad de Coronado, and before the Compañía Nacional de la Fuerza Luz; these, by themselves, do not prove the serious damage; they only demonstrate the judicial and administrative actions that the group of neighbors has undertaken in response to what they consider illegal constructions that threaten the environment and their rights. They also provide the land use permit and the layout plan for parcel 23 of Hacienda Miraflores, together with aerial photos of said property. In the undersigned's opinion, said documentation is also not pertinent to prove the alleged damage; indeed, from the evidence provided, the magnitude of the construction project can be determined, but not the impact it has created on the environment. A technical criterion is missing from the case file that could prove the impact that the constructions alleged to be illegal are causing on the environment. Photographs of wildlife and of supposed intentional burning carried out on parcel 23 are also provided; regarding the wildlife photographs, photos of a tapir and a puma are attached; however, there is no way to corroborate that they are photographs taken in Hacienda Miraflores, and even if the foregoing could be demonstrated, the undersigned considers that they are not suitable to prove the serious current or potential damage of the constructions on wildlife. The same situation arises with the photograph of the supposed intentional burning on parcel 23; it is repeated that technical evidence is missing from the case file that demonstrates the impact on wildlife, as well as on the aquifers—the same situation that occurs with the loss of value of the properties of the neighbors of Hacienda Miraflores and the landscape impact. Regarding these matters, the evidentiary absence is even greater, since no type of evidence is provided to this effect, and everything remains as stated by the party. On this, it must be pointed out that it is the duty of the moving party to provide all the evidentiary elements that support their thesis, under the protection of what is regulated by numeral 41.1.1 of the Código Procesal Civil, used supplementarily by canon 220 of the Código Procesal Contencioso Administrativo. Thus, if the plaintiff does not provide evidence supporting the serious current or potential damage caused by the constructions he alleges are illegal to the environment, the aquifers, wildlife, and the value of the neighbors' properties and the landscape in general, this Judge cannot substitute the function of the party and presume a possible damage without sufficient evidentiary support. Therefore, the indicated prerequisite, meaning the danger in delay, is not configured, so the appropriate course is the rejection of the precautionary measure. Lastly, regarding the weighing of the interests at stake and the impact on the public interest or that of interested third parties: This Judge considers that, since there is no appearance of good right and the existence of serious damage has not been demonstrated, one can only conclude that the particular interest must yield to the public interest represented by the need for the actions of public entities and private individuals to conform to the parameters of legal certainty and legality provided by the legal system. Thus, as already stated in previous lines, the lack of appearance of good right and the proven lack of serious current or potential damage on the part of the plaintiff mean that the balance in this case leans irremediably towards the protection of the public interest.
- VIII)COSTS: As this involves precautionary justice, the awarding of costs is not provided for because the petitioners cannot be considered "defeated," given that no pronouncement has been issued on the merits of the matter; it is resolved without special award of costs. (see, among others, RESOLUCIÓN 009-TA-11, 010-TA-11. SENTENCIA Nº 90 -2011 bis TRIBUNAL DE APELACIONES DE LO CONTENCIOSO ADMINISTRATIVO Y CIVIL DE HACIENDA. Anexo A of the Second Judicial Circuit of San José, Calle Blancos, at thirteen hours thirty minutes on the sixteenth of March, two thousand eleven).- IX) DECISION OF THE CASE: Therefore, since the necessary legal prerequisites are not fully present (The prerequisites of appearance of good right, danger in delay, and weighing of the interest at stake are not met), the precautionary measure requested in the terms in which it was formulated must be declared without merit. As a logical consequence of this disposition, the precautionary measure requested is rejected.
Given the inherent characteristics of this type of proceeding, judgment is rendered without an award of costs. In due course, archive the case file.-
POR TANTO
The precautionary measure requested by ROBERTO IGLESIAS MORA, acting in defense of the collective interests of the ASOCIACIÓN DE PROPIETARIOS Y FAMILIARES DE HACIENDA MIRAFLORES, against COMPAÑÍA NACIONAL DE FUERZA Y LUZ and JOSÉ LUIS MADRIGAL VILLALOBOS, is rejected. This matter is decided without a special award of costs. NOTIFÍQUESE.- Daniel Salas Blanco. Juez Tramitador.- DANIEL FRANCISCO SALAS BLANCO - JUEZ/A TRAMITADOR/A Goicoechea, Calle Blancos, 50 meters west of BNCR, across from Café Dorado. Telephones: 2545-0107 or 2545-0099. Ext. 01-2707 or 01-2599. Fax: 2241-5664 or 2545-0006. Email: [email protected] It is a faithful copy of the original - Taken from Nexus.PJ on: 08-05-2026 12:23:16.