A grantor owned two tracts of land, one 10 acres and the other 20 acres. Fifteen years ago, the grantor conveyed the larger tract to a friend and retained the smaller tract for himself. The deed to the friend contained, in addition to all requirements for a valid deed, the following provision: "I, the grantor, bind myself that in the event I offer to sell the smaller tract that I now retain, I will notify the grantee in writing, and the grantee shall have the right to purchase the smaller tract for its fair market value as determined by a board of three qualified expert appraisers."
The deed also contained a reciprocal provision conveying a similar right to the grantor for the right to purchase the larger tract from the friend.
Five years ago, the grantor decided to sell the smaller tract of land. He informed the friend in writing of his intention to sell the property. The friend had no interest in buying the smaller tract and released his right to purchase the tract. The grantor sold the property to a buyer.
Several months ago, the friend decided to sell the larger tract of land. However, the friend failed to inform the grantor in writing of his intention to sell the property. The grantor learned of the offer to sell the property through a local newspaper. The grantor approached the friend with an offer to purchase the property at fair market value. The friend refused because he believed he could sell the property for a higher value.
The common law Rule Against Perpetuities is unmodified in this jurisdiction and there are no applicable statutes.
The grantor has brought an action for specific performance of the right of first refusal.
Is he likely to succeed?