In a nonpayment proceeding, unlike a holdover proceeding, the landlord may not terminate the tenancy prior to the commencement of the proceeding. Indeed, in order to prevail in a nonpayment proceeding, the landlord must invoke the tenancy. (RPAPL 711, subd 2.)
In a holdover proceeding, on the other hand, the tenancy must be terminated prior to the commencement thereof and the prior termination is required to be pleaded therein. Notice of such termination and the date of the termination must be given to the tenant prior to the proceeding.
In the case at bar the failure of the respondents to pay the rent under the lease obviously formed the basis for the nonpayment proceedings. The very same failure to pay rent also gave petitioner the right to commence holdover proceedings under 24 CFR 450.3. That section permits a landlord to terminate a tenancy for “material noncompliance with the rental agreement” and 24 CFR 450.3 (c) states in pertinent part that “[Nonpayment of rent * * * shall constitute a substantial violation of the rental agreement”.
It is the court’s view that by reason of the failure of the respondents herein to pay the rent, the petitioner had the *447option of affirming the tenancies and suing for the rent due in a nonpayment proceeding or terminating the tenancy under 24 CFR 450.3 (c) and instituting a holdover proceeding. The petitioner herein opted for the nonpayment proceeding and the court determines that the notice of termination of the tenancy mentioned in 24 CFR 450.4 is not required.