In a built-to-suit contract, disputes almost never come from the rent — they come from tasks each side “assumed were the other’s”: who pays when the design must change because a code changed, who compensates a three-month handover delay, who repairs a leaking roof in year four. Clear responsibility allocation from the start is what makes the BTS model work. This article walks through each phase and assigns a sensible default owner to every task, with the points to negotiate.
1. Design phase: tenant’s specification, developer’s approval duty
The tenant is responsible for the correctness of its functional requirements: line parameters, loadings, capacities and production environment standards declared in the technical specification — if the works prove unusable because the original specification was wrong, that is the tenant’s risk. The developer (the building party) is responsible for turning the specification into a lawful, buildable design: drawings must pass appraisal/approval under construction law, including fire-protection design appraisal under Law 55/2024/QH15 and Decree 105/2025/ND-CP; if the developer’s design fails appraisal despite a valid specification, the fix cost and responsibility sit with the developer. Post-signing design changes (change orders): the requesting party bears the cost and the schedule impact, except changes forced by new law — which need a pre-agreed sharing clause.
2. Construction phase: quality, permits and safety belong to the developer
The developer is the subject of the entire construction procedure: construction permit (where required), contractor selection, site supervision, site labour safety, completion acceptance and fire-protection acceptance before handover. The tenant is not a party to the construction contract and bears no responsibility toward the contractor; its rights in this phase are the inspection rights at agreed milestones and the right to refuse handover where the works deviate from the specification beyond tolerance. Construction cost overruns from materials prices or site management are the developer’s risk — unless the contract has a rent-adjustment clause tied to verified actual costs, which the tenant should accept only with a clear cap.
3. Handover and the term: which milestone starts the rent
Responsibility must be assigned to three distinct milestones: technical handover (works complete, eligible for acceptance), use handover (after fire-protection acceptance and operating conditions), and the rent commencement date. The tenant-safe structure: rent runs only from use handover; delay beyond the agreed threshold triggers delay penalties and a termination right with refund of deposit/advance payments. Conversely, if handover meets standard but the tenant is late taking over for internal reasons (equipment not arrived), rent still runs from the committed milestone — the tenant-side responsibility the contract should record symmetrically so both parties keep schedule discipline.
4. During the term and at exit: warranty, repairs, reinstatement
The standard split: the developer carries works warranty under construction law and repairs defects in structure, roof waterproofing and original technical systems; the tenant carries daily operational maintenance, use-caused damage and everything it fitted out itself. Fire systems: the developer is responsible for initial validity and the structural parts of the system; the tenant is responsible for operation, periodic maintenance and fire-safety conditions of its own production activity (materials, storage layout) under premises fire rules. At exit: the tenant removes its own assets and returns the factory in the agreed condition (fair wear and tear excepted); whether fixed fit-outs stay or are reinstated must be recorded at the time each fit-out is approved, avoiding disputes in the contract’s final year.
Frequently asked questions
The design must change because the appraisal authority requires it — who pays?
If the change arises because the design did not meet codes despite a valid tenant specification, cost and schedule sit with the developer — that is the design/build party’s professional responsibility. If it arises because the tenant’s original specification conflicted with codes, the cost sits with the tenant. The contract should state this allocation principle with an independent-consultant mechanism for determining causation when the parties disagree.
The contractor builds slowly — whom does the tenant claim delay penalties from?
From the developer — the tenant’s only contract counterparty. The developer–contractor relationship is a separate construction contract; the tenant has no direct relationship and need not “sympathise” over contractor reasons unless the BTS contract has an applicable force majeure clause. This is why late-handover sanctions must be sized to give the developer real incentive to manage its contractor.
The tenant wants to add an exhaust treatment system after operations start — whose procedure and cost?
The tenant owns the cost and the environmental file for its own activity; but installation on the developer’s building structure needs the developer’s consent, and if it changes loadings/structure or affects the common fire system, supplementary appraisal is required. Agree in writing before construction, with a reinstatement commitment at exit.
When the construction warranty expires, who bears structural defects?
Expiry of the statutory construction warranty does not end the owner’s structural responsibility: lease allocation normally assigns major structural repairs to the developer throughout the term, because it is their asset and the condition for the tenant to use the premises for the leased function. The tenant bears only damage caused by its own misuse.
