#25031
Sir Humphrey
Strataguru

    First up. This is a silly by-law/rule. Some small dogs are not well suited to apartments (need constant stimulation, run around, bark etc) and some large dogs are well suited (happy to laze about all day even if they missed a walk). 

    If you were not buying off the plan I might suggest investigating what culture has evolved. Perhaps larger dogs are tolerated routinely and the rule has languished for years without ever being applied. If that were the case you might take a chance that you could move in with the dog and seek to update the rule to something more sensible through the proper democratic process at a general meeting. 

    However, off the plan, who knows what the new owners will do. Strictly and pedantically apply the rule? How long might the developer still have control? Will the developer enforce the rule?

    You could investigate if this is a properly registered by-law. I assume that the bylaw/rule only takes effect when registered. Otherwise the default from the Act applies. Depending on what state you are in, there might be a default rule in the Act or the matter might be covered within the Act. 

    Others here will have to advise if you are somewhere other than the ACT. In the ACT, s.32 of the Unit Titles (Management) Act 2011 states that “a unit owner may keep an animal, or allow an animal to be kept … only with the consent of the owners corporation” which may be given “with or without conditions” but “must not be unreasonably withheld”. The default rules do not cover animals. Any custom rule on animals must be consistent with s.32 but could have a custom rule. If the rule you described were in the ACT, you would have to apply to have your dog in the unit. To do otherwise would be a breach of the Act. If your application were rejected, you could argue that the rule is of no effect because it is inconsistent with the Act because it is unreasonable to reject a placid dog such as yours. However, you could find yourself having to make that argument in the tribunal. 

    There are Tribunal precedent cases you could draw on to support this position, perhaps in other states too. In the ACT, our Tribunal is inclined to draw on decisions in other states if there is no local case history to draw on. 

    If the developer still has complete control of the owners corporation, any decision it makes is a unanimous decision. You could say that you will buy the unit, but only with permission granted for your dog.