New Rule for Tenants Who Fail to Appear at Hearing

In one of our recent Section 1.21 cases before the Rent Board, the tenant chose not to attend the hearing, claiming that a “medical excuse” precluded her from traveling to San Francisco. Yet during the hearing, the landlord’s private investigator observed the tenant to be in the Rent Board’s restroom coaching her witnesses! In addition, prior to the hearing, a written discovery request was also served on the tenant, requesting certain documents and things to assist in determining where she principally resided. Her attorney refused to provide any of the requested items, and informed the Rent Board that his client was not required to participate in discovery.

This case eventually went before the Rent Board Commissioners. Although the Rent Board rules do not require a tenant to attend the hearing or to produce evidence, given the egregious facts of this case, the Commissioners adopted the following rule: “In determining what inferences to draw from the evidence or facts in a case against the party, the judge may consider the party’s failure to explain or deny any adverse evidence or facts in the case or any willful suppression by the party of evidence relating to them.” This rule mirrors a civil law jury instruction and should make it easier for landlords to prove their case when the tenant decides not to appear at the hearing and/or not to produce any evidence.