## Facts

- A supermarket tenant operated in the Wasilla Shopping Center under a long-term lease requiring use “for the principal purpose” of a general food supermarket and restricting subleasing without landlord consent.
- A separate liquor store (Oaken Keg) originally operated in a satellite building associated with the shopping center.
- In 1996, after a change in Alaska law, the liquor store was relocated into the supermarket premises.
- The landlord’s property manager (acting for the landlord) knew of and facilitated the relocation and raised no objection at the time.
- For roughly six years after the relocation, the landlord accepted rent and continued the lease relationship without asserting default.
- During that period, the landlord made formal “no default” representations in connection with shopping-center financing, and the property manager did not timely assert default when the tenant’s business was later acquired.
- Around 2002, the landlord claimed the relocation breached the lease’s use and sublease provisions and sued for declaratory and injunctive relief and damages.
- A jury found the landlord’s manager was estopped from enforcing the use clause, but the trial court set aside that finding and entered judgment for the landlord based on breach, awarding damages.

## Issues

1. Whether the landlord waived its right to enforce the lease against the liquor-store relocation through prolonged inaction and affirmative conduct indicating acquiescence.
2. Whether a lease non-waiver clause prevented a finding of waiver on these facts.

## Decision

- The Alaska Supreme Court reversed the judgment for the landlord.
- The court held the landlord’s lengthy silence, facilitation of the relocation, continued acceptance of rent, and “no default” representations waived any right to insist on strict lease compliance as to the relocation.
- The court held the non-waiver clause did not bar waiver where the landlord’s course of conduct showed an intentional relinquishment of a known right.
- The landlord’s claims premised on the relocation were therefore barred by waiver.

## Legal Principles

- Waiver is the voluntary relinquishment of a known right and may be implied from conduct so inconsistent with an intent to enforce the right that it reasonably signals abandonment.
- A party that continues performance, accepts benefits, and fails to give timely notice after a known breach may be found to have elected to continue the contract and, in appropriate circumstances, to have waived the right to enforce that breach.
- A contractual non-waiver clause may prevent automatic waiver from isolated indulgences, but it does not prevent a court from finding actual waiver based on a clear and sustained course of acquiescent conduct.

## Conclusion

Because the landlord knowingly facilitated and accepted the liquor-store relocation for years while representing the leases were not in default, it waived enforcement of the lease provisions as to that relocation, and the landlord could not later invoke a non-waiver clause to revive the waived rights.


Carr-Gottstein Foods Co. v. Wasilla, LLC, 182 P.3d 1131 (Alaska 2008)