128 Hawai‘i at 359, 289 P.3d at 995. The ICA then noted that the cases Kutkowski cited in support reflected the minority view. 128 Hawai‘i at 360, 289 P.3d at 996 (citing Wilber Lime Products, Inc. v. Ahrndt, 268 Wis.2d 650, 673 N.W.2d 339 (Wis.Ct.App.2003); Brenner v. Duncan, 318 Mich. 1, 27 N.W.2d 320 (1947); Berry–Iverson Co. v. Johnson, 242 N.W.2d 126 (N.D.1976); and Pantry Pride Enters., Inc. v. Stop & Shop Cos., 806 F.2d 1227 (4th Cir.1986)). The ICA then adopted the majority view, reflected in the cases cited by PPGC, for the following statement of law:
[¶ 16] When a party has a right of first refusal on specified property, the seller cannot add additional property and make it part of the package, thereby forcing the option holder to purchase the additional property to exercise the option. Berry-Iverson Co. of North Dakota, Inc. v. Johnson, 242 N.W.2d 126, 134 (N.D. 1976); see also Landa v. Century 21 Simmons Co., Inc., 377 S.E.2d 416, 421 (Va. 1989) (the holder of a right of first refusal cannot be compelled to purchase more property than is subject to the right of first refusal or else forfeit the first refusal right). In Berry-Iverson, a farm tenant had a right of first refusal to purchase a four-acre tract of land being farmed by the tenant.
As an example of the reasoning for this line of cases, the Supreme Court of North Dakota explained: See Maron v. Howard, 258 Cal.App.2d 473, 66 Cal.Rptr. 70, 79 (Cal.Ct.App. 1968); Denco, Inc. v. Belk, 97 So.2d 261, 265 (Fla. 1957); N. Side Asphalt Material Transp., Inc. v. Foreman, 520 N.E.2d 457, 460 (Ind.Ct.App. 1988); Unlimited Equip. Lines, Inc. v. Graphic Arts Ctr., Inc., 889 S.W.2d 926, 935 (Mo.Ct.App. 1994); Berry-Iverson Co. of N.D., Inc. v. Johnson, 242 N.W.2d 126, 133-34 (N.D. 1976); Janas v. Simmons, No. WD-86-60, 1987 WL 9903, at *2-3, app. at *10 (Ohio Ct.App. 1987) (not designated for publication); Landa v. Century 21 Simmons Co., 237 Va. 374, 377 S.E.2d 416, 421 (1989); Wither Lime Prods., Inc. v. Ahrndt, 268 Wis.2d 650, 673 N.W.2d 339, 343 (Wis.Ct.App. 2003); see also Pantry Pride Enters., Inc. v. Stop Shop Cos., 806 F.2d 1227, 1229-31 (4th Cir. 1986) (applying Virginia law). we conclude that an intention to sell a larger parcel of land, including a tract under lease to a tenant, is evidence of an intention to sell the leased premises, even where no separate apportionment of value is made by owner and purchaser.
We similarly conclude that the intention to sell leasehold interest and equipment where the leasehold interest is protected by a right of first refusal, can be taken as the intention to sell the leasehold interest alone. See Berry-Iverson Co. of North Dakota v. Johnson, 242 N.W.2d 126, 134 (N.D. 1976). Having determined that the remedy of specific performance is appropriate here, the Court must now determine whether Stop Shop should be allowed to purchase the leasehold interest for the allocated amount of $142,750.
In North Dakota, the owners of a farm leased a four-acre parcel of their land to a broadcasting company for the purpose of installing and maintaining a radio transmitter tower. Berry–Iverson Co. of N.D. v. Johnson, 242 N.W.2d 126, 127–28 (N.D.1976). Although the land was suitable for agricultural purposes, it was leased for the intended purpose of building a radio transmitter and was actually used as a site for a radio transmitter.
" The Traugers concede that this court construed Section 47-16-02, N.D.C.C., in Berry-Iverson Co. of North Dakota, Inc. v. Johnson, 242 N.W.2d 126 (N.D. 1976). In Berry-Iverson, the successors in interest to the original lessors defended against an action for breach of the terms of a twenty-year lease by arguing that the lease was invalid as a violation of Section 47-16-02, N.D.C.C. This court rejected that argument:
Wilber Lime adopted what it recognized as a minority view because to "conclude otherwise would permit an owner and prospective purchaser to, in effect, destroy a bargained-for purchase preemption before [its] expiration [.]" Id. at 342 (quoting Berry–Iverson Co. v. Johnson, 242 N.W.2d 126, 134 (N.D.1976) ) (internal quotation marks omitted). As discussed below, courts holding the majority view have rejected this logic, refusing to enlarge one party's rights over or at the expense of those of the other party, where a right of first refusal was not triggered under the terms of the parties' agreement.
We note finally that, even in the different context of the contiguous land cases, a significant minority of courts favors specific performance. See, e.g., Berry-Iverson Co. v. Johnson, 242 N.W.2d 126 (N.D. 1975); Brenner v. Duncan, 318 Mich. 1, 27 N.W.2d 320 (1947). In this diversity case, Virginia law obviously applies.
Those cases have held that specific performance is not available to the lessee in such situations. Id.; But see Brenner v. Duncan, 318 Mich. 1, 27 N.W.2d 320 (1947); Berry-Iverson Co. of North Dakota v. Johnson, 242 N.W.2d 126 (N.D. 1976). Those decisions which hold that specific performance is not available to the lessee recognize, however, that a lessor's offer to sell a larger parcel of land cannot operate to impair or destroy the preferential right of the lessee of a portion of that tract to purchase the demised premises.
Id.Boyd Mahoney v. Chevron U.S.A., 614 A.2d 1191, 1195 n. 1 (Pa.Super.Ct. 1992); Berry-Iverson Co. of North Dakota, Inc. v. Johnson, 242 N.W.2d 126, 135 (N.D. 1976) (same). A right of first refusal entitles the holder to match any subsequent offers for the property before the third party offeror can complete its transaction.