Brazilian Superior Court analyzes legality of check-in and check-out hours 28 jun 2023

Brazilian Superior Court analyzes legality of check-in and check-out hours

By: Rafael Jordão BussiereFabio Perrone Campos Mello and Ana Beatriz Barbosa

Brazil’s Superior Court has validated a hospitality market practice in its decision regarding a civil class action filed by the national consumer and citizenship protection association − Associação Nacional de Defesa da Cidadania e do Consumidor (ANADEC) against a manager of a São Paulo hotel.

ANADEC filed the civil class action lawsuit in 2012, saying that the difference in hours between check-in (3:00 pm) and check-out (12:00 pm) should be deducted from the daily room rate. The plaintiff’s original claim was based on the understanding that it would be illegal to charge guests for an entire 24-hour stay if the room was only available for 21 hours, based on art. 23 § 4º of the National Tourism Law No. 11.771/08. In addition, the plaintiff claimed indemnification from the defendant for an amount equivalent to that which hotel guests had already paid (allegedly in excess) over the last five years.

The 27th Chamber of the São Paulo State appellate court originally granted the plaintiff’s request in part, determining that the hotel manager should be obliged to grant 4.16 percent of the daily rate or a discount of 1/24 of the daily rate per hour, between check-in and check-out, the amount to be deducted from the daily rate applied. But the court considered that the plaintiff lacked legitimacy to claim indemnification based on non-homogeneous rights; a requirement in such instances is evidence of damage by each consumer.

However, in hearing Special Appeal # 1,717,111, the Third Chamber of the Superior Court of Justice unanimously reverted that appellate court decision, reviewing the interpretation granted to the law.

The panel dismissed ANADEC’s requests on the following grounds: (i) acknowledgement that the supplier acted in good faith and in accordance to international and national market practice; (ii) the check-in time is more in the nature of information, letting the guest know that the room may not be available until a certain hour, rather than the initial term of the hospitality contract; and (iii) the contract is not limited to guest room availability, being a combination of hosting and hospitality services either included in the daily rate or on demand.