dissenting:
I dissent. The rule against perpetuities has no application to the facts in this case, and.there is no direct or indirect restraint upon alienation. Here, the majority makes its own finding of fact on alienation. The members of the association who could elect to purchase the property have no right or power to affect the subject property in any way, until the owner expresses a desire and willingness to sell. The marketability of the property is not affected. When the owner desires to sell his property, the association, or one of its members, has for the contract duration, a period of five days, the first right to buy.
If the pre-emptive holder elects to purchase the property, a new contract is signed which will give him an interest in the land. If there is no election to purchase, this does not release a property interest. The preemptive holder merely has the contract right of first refusal. See Robroy Land Co., Inc. v. Prather, 95 Wash.2d 66, 622 P.2d 367 (1980).
Atchison v. City of Englewood, 170 Colo. 295, 463 P.2d 297 (1969) neither mandates nor supports the majority’s position. There, Englewood, in purchasing water and desiring to enhance its position so that it could change the point of diversion of the water, also purchased the real property with the Atchisons reserving a one-half interest in the minerals and retaining a right of first refusal to repurchase the real estate. The court reasoned that if the Atchisons sold their mineral interest, it might become impossible to locate them and give them notice of a possible sale, so that they would be able to determine whether they desired to exercise their right of first refusal. For that reason, the Court held that the right of first refusal to repurchase was void.
There is no such problem here. The owner of the property desiring to sell would only have to give notice to the Association, who would then have the responsibility to notify the remaining owners who would have only five days from the date notice was mailed to elect to purchase the property.
*215The purpose of the rule against perpetu-ities will not be served if the majority opinion is allowed to stand. The exercise of the pre-emptive right to purchase is a contract right, while the rule against perpetuities is a rule of property, rather than a rule of contract. Warren v. City of Leesburg, 203 So.2d 522 (Fla.App.1967). As stated in 4 Restatement of Property, § 413 (1944) (comment on subsection 1):
“The interference with alienation present in a requirement that a designated person be afforded a reasonable opportunity to meet any offer received from a third person by an owner desirous of selling is so slight that the major policies furthered by freedom of alienation are not infringed to a degree which requires invalidation. Under these circumstances, the buyer has two potential buyers at the same price and is assured of a reasonable, prompt culmination of the sale. Such restraints are, therefore, valid.”
For these reasons, I would affirm the judgment.