At this time of year, many retail tenants will be under pressure to take occupation to complete their fit out works in time for the peak Christmas shopping period. In order to meet this critical deadline, in some instances the Tenant may have been forced to accept an early access letter, allowing the Tenant access before legal completion of the documents, for example to enable strip out works.
If such early access is not granted pursuant to an agreement for lease (with usual licensee provisions if occupation is taken up prior to lease completion) the Landlord may insist on the Tenant signing an early access letter. Whilst this letter is of some comfort, it is not without risk and will most likely be couched in terms that the Tenant is only granted occupation as a licensee and the Landlord has the ability to terminate that arrangement on immediate notice.
If a Tenant is to take occupation without the benefit of a binding agreement for lease, ideally the terms of the early access letter should include a contractual commitment by the Landlord to grant a lease to the Tenant.