The Third Panel of the Superior Court of Justice (STJ) granted the special appeal of a hotel chain to establish that there is no illegality or abuse in setting different times for check-in and check-out of guests. According to the justices, the practice – accepted within and outside Brazil – does not violate consumer rights.
The appeal reached the STJ after the Court of Justice of São Paulo (TJSP), in the course of a public civil action, upheld part of the appeal of the National Association for the Defense of Citizenship and the Consumer (Anadec) and ordered the hotel chain to return to the guests of the last five years the financial equivalent of the three hours deducted from the daily rate, given that entry into the establishments is at 3 p.m. and departure at 12 noon.
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Anadec filed the action alleging that there would be illegality in the conduct of the chain’s hotels, since Law 11.771/2008 is express in determining, in its article 23, paragraph 4, that the daily rate must correspond to a period of 24 hours – which would not be being complied with.
In the first instance, the action was dismissed as unfounded, on the understanding that the difference in times would be necessary for the performance of services in the rooms.
Different times for check-in and check-out
The reporting justice of the appeal at the STJ, Justice Paulo de Tarso Sanseverino, stated that a reasonable interpretation of article 23 of Law 11.771/2008, regulated by article 25 of Decree 7.381/2010, is necessary, “taking into account, notably, the good faith of the supplier, the reasonableness in establishing a period of tolerance for the entry of the new guest into the apartment reserved by him, and the uses and customs of the service provided to the consumer market”.
According to him, the literal interpretation of the provisions leads to the conclusion that the daily rate of a hotel or any other similar establishment corresponds to the 24-hour period between the entry and departure of the guest.
However, for the justice, the lack of uniformity regarding check-in and check-out times, in hotels in general, “does not alter the premise that there is an undeniable consensus to the effect of the absolute necessity and reasonableness of granting the establishment a period for the hotel to prepare the units to receive a new guest, which cannot generate a reduction in the value of the daily rate charged to the consumer”.
The justice emphasized that there is no abusive practice by the hotel in this regard, even more so if the company, as in the case judged, clearly conveys the information about the guests’ entry and departure times.
Maximum term
In his vote, the reporting justice further highlighted that the check-in time is less an initial term of the lodging contract and more a prior warning that the room may not be available to the guest before a certain time. “Only if there are no rooms available to its clients at the time they arrive at the hotel will they have to await the conclusion of the organization and cleaning services of the housing unit, which, it should be said, has as its maximum term the time previously established for check-in”, he said.
Justice Sanseverino also recalled that from the client’s arrival at the establishment, the hotel’s services are offered to him, and he may use them for a period of 24 hours. “The lodging contract, as the doctrine reminds us, is a comprehensive whole of a series of concatenated services, some included in the daily rate, others offered ‘on demand’, not being limited, therefore, to the guest’s occupation of a certain physical space (room)”, he emphasized.
Thus, he concluded that “the duty of cooperation between the contracting parties arises from objective good faith, and the lodging service provider cannot be required to always have at the guests’ disposal vacant units ready for new occupancy when the departure time of one client is the same as the entry time of another”.
Source: STJ
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