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No room at the inn for not knowing the law!

by Norman Geddes

As this is the height of the holiday and tourism season, I thought that it might be timely this month to take a sometimes light-hearted look at just a few of the ways in which the law affects hoteliers, or innkeepers as they used to be more commonly called.

Here in Scotland, owners of hotels have been the subject of a unique collection of legislation setting out their rights, duties and obligations which dates back to Roman times.

The Romans discovered that Scottish innkeepers were often in league with local highwaymen who, forewarned of the arrival of rich guests, would hold them up, set upon them, and rob them of their goods and chattels!

To put an end to this unsatisfactory state of affairs, the Romans issued what was called a Praetorian Edict, which I suppose was the ancient equivalent of an EU Directive. These laws set out precisely what a hotel could and couldn’t do, and it is fascinating to see how the legislation affecting Scottish hotel owners today - notably the Hotel Proprietors Act 1956 (HPA) - derives directly from those in force nearly 2,000 years ago.

Modern law starts off by defining exactly what a hotel is:

“an establishment held out by the proprietor as offering food, drink and, if so required, sleeping accommodation, without special contract to any traveller presenting himself who appears able and willing to pay a reasonable sum for the services and facilities and who is in a fit state to be received.”

What is not so precisely defined is what a “traveller” is, and for this we have to resort to subsequent case law for guidance, as each situation is treated on its own merits.

Length of stay is not conclusive, but is one factor to be taken into consideration. For instance, if a person stays at a hotel for a lengthy period they may cease to be a traveller and the innkeeper may refuse to continue providing accommodation and refreshment any longer, and may legally ask them to leave after giving a reasonable period of notice.

Length of journey is also not conclusive, as a very short journey may be sufficient, as in one case where a farmer who was also a local resident called at an inn for refreshment but not accommodation. He was held by the court to be a traveller even though he was at the inn for temporary refreshment.

In contrast to a shopkeeper who by placing goods in a window with or without their prices only makes an invitation to treat and does not make an offer, a hotel owner makes a continuous offer of accommodation. The duty is to receive and lodge in the hotel all travellers and to entertain them at reasonable prices without any special or previous contract, unless there is some reasonable ground for refusing to do so.

A hotel owner may refuse to provide accommodation where the traveller is not in a fit state to be received – for example, if the traveller is drunk. Or (interestingly) where the traveller is not suitably dressed - as in a very old case involving a chimney sweep in his working clothes - a situation that presumably modern hotel owners aren’t faced with all that often!

However, a hotel owner cannot refuse to receive travellers simply because they arrive very late, or because they want to sit up all night. Old case law also suggested that a traveller could not be refused if they did not supply their name and address, but this rule has now been superseded by legislation. A hotel owner who offers accommodation in return for payment is now required to obtain from every person staying at the premises a statement as to their nationality, and, in the case of an alien, their name, nationality, date of arrival, passport number and last address. These records must be kept for a minimum period of twelve months. Interestingly, it is not an offence to provide a false name!

Again, old case law suggests that illness of a traveller is not a sufficient reason for refusing to receive them, but this position has also been modified by more recent legislation. In the case of notifiable disease (cholera, plague, relapsing fever, smallpox or typhus) a justice of the peace may order a person suffering from such a disease to be removed to a hospital. It is an offence for a person who knows they are suffering from such a disease to expose others to the risk of infection by their presence or conduct, or for anyone to have such a person under their care.

Even before the advent of anti-discrimination legislation, it had been held unlawful to turn away a person on the basis of their skin colour. But statute now insists that the duty to receive travellers applies regardless of their race or sex.

A hotel owner is also duty-bound by law to receive all the goods with which the traveller normally travels, or his luggage. This is the case even if the luggage does not belong to the traveller. Only if the goods or luggage were of an exceptional nature would the hotel owner be legally justified in refusing to receive them.

A hotel owner has been historically bound to accommodate a traveller’s horse in the inn’s stables, and to feed and water it.

This duty is obviously not of great significance today, but it has been held that a hotel owner is now under a duty to receive a traveller’s motor car where facilities are available, although there is no obligation to provide special garaging for it.

A hotel owner is obliged under common law to provide reasonable refreshment to travellers at any time of the day or night. The use of the word reasonable suggests the flexible nature of the duty. It does not require a hotel owner to lay on 3-course meals at all times of the day or night. As long as he provides reasonable refreshments such as sandwiches at other times, it would be perfectly acceptable to offer full meals at certain times of the day only. Furthermore, a traveller stopping only for temporary refreshment would only be entitled to alcoholic drinks during licensing hours.

Here we have only just touched lightly on the subject. Whenever a hotelier or guest (or anyone else for that matter) is in any doubt about their legal rights and obligations – consult a solicitor.

Norman Geddes is senior director of Ayr-based solicitors Frazer Coogans.

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