(dissenting).
I must respectfully dissent.
While I agree with the majority’s exposition of the principles of notice pleading, I think that the remedy of forcible entry and detainer was inappropriate and unavailable in the circumstances of this case.
There is no question that if the Clinic occupied additional and remodeled space in the Center’s building it would owe additional rent in some amount greater than that provided by the 1966 lease. But it is impossible to determine, without reference to extraneous facts, what the amount of that additional rent should be. The letter of intent does not permit any precise reckoning. Even if it can be construed as a binding promise — a question as to which I take no position — it is too vague in terminology to create a liability for rent in any definite amount. The relevant provisions of the letter of intent, by which the Clinic agreed to be bound, are these:
“1. Rent to be paid for the additional newly constructed space shall be at the same rate of return on capital invested by the Medical Center Partnership as for the existing building on an absolute net basis not to exceed $1.25 per square foot for the initial year of the term.
2.The lease term shall be for the period commencing on the day following the completion of construction, and ending August 31, 1987, with options to renew and other terms to conform generally to the lease on the existing building except as hereinafter provided.
3.The lease for the newly constructed space shall provide for an annual increase in rental at the rate of two (2%) percent above the rate for the preceding year.
4. The lease on the existing building executed on August 15, 1966, will remain in effect; provided, however, that an addenum to such lease shall be executed which shall provide that when the remodeling and/or alteration of the existing building is completed the Fairbanks Medical and Surgical Clinic will pay an additional rental for the remodeled or altered existing space to be determined as follows :
The actual cost to the Fairbanks Medical Center Partnership of remodeling and/or altering the existing building, including architectural fees and overhead at the rate of ten (10%) percent plus interest at eight (8%) percent per annum will be amortized over the term of the existing lease and a sum equal to the annual amount of said amortization increased at the rate of two (2%) percent per annum shall be the amount of the rental increase to be paid in twelve (12) equal monthly installments and added to the monthly rental now paid or to be paid under any renewal options.
5. The new lease under item (2) above shall contain the same renewal options as in the existing lease with the added provision that the new lease can only be renewed and must be renewed to conform to any renewals of the existing lease.
The Fairbanks Medical and Surgical Clinic, Inc., through its agents has reviewed all the plans and specifications for the newly constructed space as well as those for the remodeling and/or alter*1262ing of the existing building which have been prepared as of the date of this Letter of Intent. The Fairbanks Medical and Surgical Clinic, Inc., by this Letter of Intent indicates its approval of these plans and specifications and instructs the Fairbanks Medical Center to proceed with the new construction, remodeling and/or alternations.”
Apparently, no document purporting to be a new lease or modification of the 1966 lease was ever agreed to by the parties. After it occupied the newly created space, the Clinic was certainly under an equitable obligation to pay rent in some amount, as yet, however, undetermined.
Given the failure to negotiate a new lease or modification of the old lease, the Center had several courses open to it. It could bring, as it did here separately, a damage action. Considering the extreme financial distress to which the Center claims it was subjected, it could also have sought equitable relief requiring that the Clinic pay some amount as additional rent during the pendency of the ejectment action, if the Clinic were to continue to occupy the additional and remodeled space. This assumes that the Center could demonstrate irreparable injury beyond the infliction of mere money damages.
At the time the forcible entry and de-tainer action was brought, the Clinic still had a valid and subsisting lease. It could be terminated prematurely only by a statutory action under AS 09.45.690, which provides :
“Unless otherwise provided in the lease, a landlord has a right to re-enter leased premises when a tenant fails to pay rent, and may bring action to recover the possession of the premises and the action is equivalent to a demand of the rent. If, at any time before judgment, the lessee or his successor in interest pays the amount of rent in arrears with interest and costs of the action and performs the other covenants or agreements, he is entitled to continue in possession unless otherwise provided in the lease.”
In its forcible entry and detainer complaint the Center alleged an entitlement to all of the Clinic’s premises, including those which were demised by the 1966 lease. The complaint thus ignores the problem of the existing lease and its termination.
Forcible entry and a detainer is a harsh, summary procedure. It is intended to be used only in cases where the right to possession by the landlord is clear. Typically it is used to evict tenants who fail to pay rent under a lease or agreement, or whose possessory term has expired. It is utterly inappropriate in cases where a substantial dispute as to the terms of the tenancy is presented. Our statute prohibits inquiry into the merits of the title dispute. AS 09.45.150. The term “title” in this context can be considered the equivalent of the term “title or estate.” Steil v. Dessmore, 3 Alaska 392 (D.Alaskal907).
In the case at bar the Clinic held an estate for years in the premises covered by the 1966 lease, the Center holding only a reversionary interest. In Alaska a lease is a conveyance of an interest in real property. Cf. Smalley v. Juneau Clinic Bldg. Corp., 493 P.2d 1296, 1299 (Alaskal972). In dealing with commercial leaseholds for a term of years, a claim that forfeiture of the estate has occurred can raise difficult questions of law or fact. To attempt to try such questions in a summary forcible entry and detainer proceeding is to do the very thing which AS 09.45.150 prohibits, i. e., inquire into the merits of title. Cases such as these cannot be tried fairly or intelligently in a summary proceeding.
I agree, therefore, with the trial judge, that to proceed upon the forcible entry and detainer complaint would have required an inquiry into title. In my opinion the complaint was properly dismissed on this basis.
The majority opinion points out that, at least as to any newly constructed space, the Clinic was holding such space without paying any additional rent. I agree with the majority that this would permit the summary eviction of the Clinic from the additional space, as to which, under the facts pleaded, it would hold as a mere tenant by sufferance. But the Center sought evic*1263tion as to the entire premises. Implicit in the ruling of the trial court is the coiiclusion, a proper one in my opinion, that to try to segregate the obligations under the subsisting lease from those arising under the occupancy of the new space would require a determination far too complex to be fairly adjudicated in a forcible entry and detainer action. There was already on file another action in which these difficult issues could have been determined. The other civil action was the appropriate vehicle for litigating the respective rights and duties of the parties.
Another flaw in this proceeding is that the complaint does not allege any definite amount of rent owing. It merely states that the Center wants more rent than it is receiving, the amount to be determined by an ambiguous formula, based in turn on a general notion of “rate of return.” Yet a tenant, under AS 09.45.690, has a right to pay rent in arrears, plus costs and interest, at any time before judgment, and may thereby avoid forfeiture of his leasehold. If a summary eviction is to be based upon non-payment of rent, a sum certain should be alleged to be due. Otherwise the tenant is deprived of his redemptive rights.
In my opinion the judgment of dismissal should be affirmed.