Expert: Russel Ray - 3/18/2008

Question
It is a new construction and the color of the brick is totally different from the one we chose. We asked the project manager and he said that it needs to be washed but they washed and still the same. It looks that they installed the wrong brick. This brick looks dirty and is really ugly. We had the walk through today and after they cleaned it but still the same. It is easy to compare because the brick we selected is in another house close to my new home. We can see the other house from my new home and they are totally different. The settlement (Ryan Homes) will be next week. What should we do?

Answer
Hey, Ricardo.

Well, I feel your pain because I've been there. The exact same thing happened to me 20 years ago.

There's really three reasons for what happened:

1 - They really did install the wrong brick.
2 - The brick is from a new batch.
3 - The brick is from a different manufacturer.

In the case of #1, you should have some recourse, but you have to be able to prove that you were buying brick ZW-72881-AW but they installed ZW-72881-BY. That can be more difficult than it sounds with new construction. And even if you can prove that, you'll sometimes find a disclaimer in your builder's purchase package that says something similar to this:

"Builder reserves the right to substitute similar quality or brands of [appliances/doors/windows/faucets/roof covering/brick/etc.]" That's where the real problem comes in because people don't always like the substituted brands, even if the substitutes were more expensive than the original. Builders have yet to learn because complaints abound here in San Diego in new construction, and I'm sure it's the same everywhere.

In the case of #2 and #3, even if the brick has the same code number, the very nature of brick is such that there can be differences between batches and differences between manufacturers due to uncertainties that one has no control over. For example, some of the more expensive brick is still sun-dried instead of kiln-dried. So if the brick is supposed to be subject to 80° for five days, but a sudden cold spell arrives with cloudy days, then the brick can look totally different from the other batches.

It can be the same with kiln drying. For example, if the brick is supposed to be cooked in the kiln at 1,000°F for four hours, but the kiln breaks down after two hours, letting the brick cool off, then another two hours of cooking is not going to result in the brick looking like it is supposed to.

Now I have to ask what you mean by "totally different"? If you chose red and the brick is dark red, that could be "normal." If you chose red and the brick is white, that's a different story. I'm presuming that since it "looks dirty and is really ugly," and that "they washed" it, that it probably is darker than the brick you chose. That's probably a natural variation in the brick, either because of the batch or the manufacturer, but I'm kind of surprised that the builder/seller/project manager couldn't explain that to you. I'm also surprised that in this market when houses just are not selling, that he's not willing to work with you more.

Continue to press them on the issue but you might also be prepared to walk away from the purchase if you can. That's always a great inconvenience, and you might have to fight to get your deposit back, but sometimes the good threat will result in action on their part. You might also consult with a good real estate attorney about the situation; many of them provide you with a free consultation, and quite often a letter from your attorney can also result in action.

Good luck.