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The 'Representations, Warranties and Covenants' Triumverate
Many retail leases contain provisions in which a party to the lease “represents, warrants and covenants” to some proposition. These three terms are often used together, as if the drafter were hoping to cover all bases by the belts-and-suspenders approach. It is quite possible, however, that many attorneys are not sure what bases they actually need to cover, so they throw in all the words just in case.
But what does each of these words really mean in the context of a lease? What protection is each term actually giving the party for whose benefit they are stated? What obligations does each word impose on the party stating them? Do you need to say them all, or will two, or even one, do just as well?
Unfortunately, there is a dearth of case law interpreting these words in the commercial lease context. And an examination of the general case law and commentaries that discuss these concepts reveals more confusion than clarity on the subject.
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