Does size matter

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. 

grahamd – I agree with PeterC to the extent that your Plan’s “rule” is so open to subjective interpretation that from that perspective at least it’s indeed “silly”, but as you’re in N.S.W. you need to check that a by-law in those terms has been properly Registered with the Strata Title by the Developer. You should already have been given a copy of the Strata Title, but otherwise you can search the relevant details HERE.

Registered or not, any of the Plan’s by-laws may be confirmed, amended, repealed, or added to by way of a compulsory motion on the agenda of the first General Meeting of the Owners Corporation once formed (or at any subsequent Meeting where no more than 25% of Owners disagree).

So were I in your shoes I wouldn’t rely on any of that, as quite frankly the intent of the off-the-plan “rule” to limit the physical characteristics of dogs that may be permitted post occupation is a reasonable one, albeit subjective, that you would in my opinion have difficulty challenging, even in circumstances where the Developer granted a worthless exemption (in order to secure a sale).

So what can you do?

If you’re determined or otherwise committed to the purchase, then you need to accept a likely situation where you will be at some stage found to be in breach of the Plan’s by-laws, and to thereafter be involved in a quasi legal process involving the NSW Civil and Administrative Tribunal and a set of scales where, given your prior knowledge of the situation regarding pets at the Plan and the Owners Corporation’s reasonable approach (by not banning pets outright), you would very likely be issued with an Order to remove your dog.

Whale said….given your prior knowledge of the situation regarding pets at the Plan and the Owners Corporation’s reasonable approach (by not banning pets outright), you would very likely be issued with an Order to remove your dog.

PeterC said….Does NSW have a provision in the Act like the ACT one: that permission shall not be unreasonably refused?

Peter – as it appears every State and Territory of Australia merely tweaks the most recent version of whichever one has the most recent strata legislation, the answer to your question re. both the current and proposed NSW Legislation is YES, and as I was trying to point out somewhat obliquely, grahamd would in my opinion be hard-pressed to successfully argue against the decisions chocolate-wheel of the NSW Civil & Administrative Tribunal (NCAT), the ACAT, VCAT, QCAT, or any other State or Territory “CAT” that a By-Law in the terms suggested was unreasonable.

It’s of course grahamd”s call, but personally, as a Lab. is a largish dog for apartment living that’s therefore not listed on the RSPCA’s Register, I couldn’t argue by-law ignorance (not that its an excuse) and therefore wouldn’t be inclined to try my luck; but that’s me.

Over and out!