dissenting.
I write separately to express my disagreement with the court's conclusion that CMS did not waive its right to abatement.
As the court notes, in Milne v. Anderson, we held that an implied waiver may be demonstrated by either:; (1) "direct, unequivocal conduct indicating a purpose to abandon or waive the legal right," or (2) "acts amounting to an estoppel by the party whose conduct is to be construed as a waiver.1 The court also recognizes that a superior court's determination whether waiver occurred is a question of fact that we review for clear error.2 In my view, the trial court's findings of fact support its ruling that Manus engaged in "direct, unequivocal conduct indicating a purpose to abandon or waive" the right to claim abatement.
After conducting a bench trial in this case, the superior court found that "[bletween April and July, Sengul and Manus had a cordial relationship, although Manus paid neither the rent nor the deposit" and "Manus told Sengul on several occasions that he knew he was late with the rent and that he would shortly pay Sengul in full." The superior court found that Manus made statements in June and July like "I know I'm late. I'm going to pay you in full, and I'm going to make it up to you," and that Manus "did not invoke or mention the rent abatement provision of the lease to Sengul until raising it in late July, when Sengul began pressing for payment of rent." As the trier of fact, the superior court found that "it is most likely that Manus did not raise any rent abatement claim until pressed to pay the rent and security deposit because he was in default of his obligation to pay the security deposit and lacked the funds or desire to pay his bills."
In reversing the superior court's decision, our court finds support in its comparison of the facts of this case to the facts of Dillingham Commercial Co., Inc. v. Spears, where we held that one party's "long acquiescence" to a specific condition constituted a waiver of her rights under a lease. 3 The court compares the "long acquiescence" in Dillingham Commercial to the period at issue in this case-the interval between the signing of the lease and Manus's first mention of the abatement provision, in late July-and describes the latter as a period of "less than three months." A period of "less than three months" may not be significant in the context of some commercial leases, but viewed in the context of the short summer tourist season in Juneau, Manus's delay effectively wiped out Sengul's ability to collect rent for an entire year. As the superior court recognized:
The reason for Manus{'s] silence regarding the rent abatement clause likely has its root in the nature of the summer tourist season in Juneau and Manus('s] personal financial situation. Smail stores in the prime tourist/cruise ship location, such as this small space, can garner annual rents of $126,000 per year, as with this lease, even though the stores are only open for approximately four months per year during the summer season and closed the remainder of the year. Thus, the "real" rent for such space when rented on an annual basis (or in this case five years) is effectively about $30,000-$40,000 per month for actual months of operation. When viewed in this light, early invocation of the rent abatement provision of approximately $81,759 was relative "small change" in view of the long-term lease.
Manus made no mention of the abatement clause until late July, and continued to operate his business in Juneau's "prime tourist/eruise ship location" storefront space until early September 2006 without paying rent. Predictably, after he vacated the premises, the space remained vacant until May 2007.
*332Given the context of this lease, I view Dillingham Commercial's reference to one party's "long acquiescence" as reinforcing the superior court's finding that Manus waived the right to claim rent abatement. The combination of Manus's statements that he had failed to pay rent, his acknowledgment that he owed rent, his repeated promises to pay the rent, and his failure to mention rent abatement until two-thirds of the tourist season had passed, support the superior court's finding that Manus waived the right to claim abatement. Because the record supports the superior court's findings of fact and conclusions of law, I respectfully dissent from the court's decision that Manus did not waive the right to abatement.
. 576 P.2d 109, 112 (Alaska 1978).
. Miscovich v. Tryck, 875 P.2d 1293, 1302 (Alaska 1994) (citing Fun Prods. Distrib., Inc. v. Martens, 559 P.2d 1054, 1058 (Alaska 1977)).
. 641 P.2d 1, 8 (Alaska 1982).