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Where a purchaser is relying on the Help to Buy scheme for the tax relief under the scheme to fund part of the deposit in the transaction, the contract or building agreement (as appropriate) should contain provisions concerning the purchaser’s application to Revenue and it being approved within an agreed period.

The developer should confirm in the contract that it is a qualifying contractor for the purposes of the scheme. If not, the contract should be made subject to the developer becoming registered under the scheme by a specified date. Correspondingly, the purchaser should confirm in the contract that he/she qualifies under the scheme and that he/she is eligible for a refund of income tax in a sum no less than the sum needed to bring the deposit paid up to 10% of the purchase price. The purchaser should also agree to provide evidence that the Help to Buy claim has been validly submitted to include the purchaser’s claim number, access code, application number and any other information required by the qualifying contractor to verify the Help To Buy application.

The committee does not agree with developers seeking a 10% deposit from the purchaser in respect of whom they are also due to obtain up to 5% of the deposit directly from Revenue under the scheme.

The parties may agree in the contract that if the purchaser’s application is unsuccessful, the contract will remain in being if the purchaser tops up within a set period of time the initial deposit to 10% of the purchase price or pays the shortfall on closing. If the parties do not so agree, the contract can provide for termination thereof where the purchaser’s application is unsuccessful.

The committee considers that the contract special conditions should reflect that the sum paid by Revenue to the developer (or the developer’s solicitor) under the scheme should be held to the order of Revenue pending completion, and that upon completion that sum will be payable to the developer.

While it is envisaged that Revenue may only pursue a purchaser in respect of any clawback, the committee considers it appropriate for the contract to contain a provision that seeks to protect the developer (and the developer’s solicitor) from any Revenue action to recover a clawback of the refund for reasons unrelated to the developer’s act neglect or default.

A sample special condition is included below. For simplicity, this is drafted as though a combined contract for sale and building agreement is used. It can be adapted easily for use where a separate contract & building agreement is used.

Help to Buy special condition

1. For the purposes of this special condition unless the context otherwise admits or requires the following words and expressions shall have the following meanings:
   • HTBSmeans the Help to Buy Incentive Scheme pursuant to Section 477C of the Taxes Consolidation Act 1997, inserted by Section 9 of the Finance Act 2016 and any extension, amendment, modification or re­-enactment of the said section and any rule, regulation, order or instrument made thereunder and for the time being in force;
   • HTB Applicationmeans the Employer’s application and claim to Revenue under the HTBS; and
   • Appropriate payment, first-time purchaser, qualifying residence and qualifying contractorhave the meanings assigned to them in the HTBS.
2. The Employer intends to rely on the HTBS for tax relief or for part-funding of the deposit payable under this Agreement.
3. The Employer agrees to make a valid HTBS Application within 28 days from the date of this Agreement for an appropriate payment in a sum which is not less than the balance of the deposit payable and to notify the Contractor once the HTB Application has been made.
4. The Employer confirms and agrees that he (or, where more than one person, each):
   • is, and at least until Completion will continue to be, a first-time purchaser; and
   • has satisfied, and at least until Completion will continue to satisfy, the conditions specified in the HTBS; and
   • has obtained a HTBS Application stage number and access code from Revenue.
5. The Contractor confirms that it is a qualifying contractor and that on Completion the [apartment] to be erected on the [Site] will constitute a qualifying residence. The Contractor does not confirm that the said premises is or will be occupied as the sole or main residence of the Employer as a first-time purchaser, which shall be the responsibility of the Employer.
6. Where the Employer relies on the HTBS to pay the balance of the deposit specified in this Agreement, the Employer shall procure that the proceeds from the HTBS Application (theProceeds) in the amount of the balance of the deposit payable under this Agreement shall be paid by the Revenue to the Contractor or its nominated solicitor in accordance with the HTBS and the provisions of this special condition. The Proceeds shall be held by the Contractor/Contractor’s Solicitor to the order of Revenue until Completion at which point the Proceeds may be retained by the Contractor or released by the Contractor’s Solicitor to the Contractor as the case may be.
7. The Employer agrees to provide to the Contractor as soon as practicable full details of the HTB Application including the information and confirmations referred to in Section 9(11) and (12)(a) of the Finance Act 2016, the Employer’s claim number assigned by the Revenue to the HTB Application, the access code and application number.
8. The Employer consents to the Proceeds being paid by the Revenue to the Contractor as qualifying contractor or its nominated solicitor.
9. If the HTB Application is successful, the Proceeds actually received prior to Completion by the Contractor or its nominated solicitor regarding the HTB Application shall be treated as a credit against the Contract Price on Completion.
10. On Completion and once the Proceeds have been offset against the balance deposit due, then the Contractor shall have no liability to the Employer in respect of the Proceeds.
11. If the HTB Application is unsuccessful or if the Contractor is or becomes obliged to repay the Proceeds to the Revenue pursuant to the terms of the HTBS, the Employer will:
    • in the case only of the former, immediately notify the Contractor’s solicitor; [and]
    • pay the difference between the deposit paid on signing of this Agreement and the total deposit payable within 14 days;

[and the unavailability of the Proceeds shall not be grounds for the Purchaser to delay Completion or terminate/rescind this Agreement] or

12. [Where special condition 11 applies, and the Employer fails to pay the sum due in accordance with Special Condition 11 either party shall be at liberty to terminate this Agreement by service of written notice at any time thereafter to that effect to the other, in which case the portion of the deposit paid by the Employer to the Contractor shall be refunded but without prejudice to any claims which either party may have for antecedent breach.]
13. For the purpose of General Condition 27, a full deposit shall be deemed to be paid only when the total deposit payable has been received by the Contractor or the Contractor's Solicitor.
14. The Employer acknowledges that if the sale has not completed within two years from the date the Contractor receives the appropriate payment, the Contractor shall be obliged to repay the appropriate payment to the Revenue pursuant to the terms of the HTBS.